againe to a pretie kind of pacification hold as wel as long as it shall But there is another partie also that perhaps will venture to rip vp agayne the seames of this greene peace if hee may not in some sort bee satisfied For there came vnto mine handes a good while after the former Treatise certaine briefe Notes without discourse that are deliuered abroad into many hands by writing being commended to be gathered by a man of great reading and iudgement in Diuinitie I awe and in what not It beareth this title Notes to prooue the proceeding ex Officio and the oath and subscription which are now required to be against the word of God the ancient Fathers and Canons of the Church and the lawes liberties and customes of the realme of England the proceeding of Office and the oath required though hee telleth not how he conceiues it to bee required as the Treatiser did doe both fall into this disputation which we haue in hand As for the subscription vpon other occasion that may hereafter elsewhere be debated The seuerall points which in respect of the two former hee handleth are by himselfe distributed and sorted into these seuerall heads viz. First testimonies out of ancient Fathers that do mislike the proceeding ex Officio and oath now vsed Secondly English Martyrs that haue refused and misliked the oath now vsed Thirdly the proceeding against heretikes in Englād without exacting an oath c Fourthlie the Canon lawe teaching Inquisition and proceeding ex officio by oath Fiftly another order of proceeding but yet in causa fidei and not otherwise Sixtlie the bishops proceedings contrarie Seuenthly the lawes of England Eightlie the maner of the reuocation of the proceeding ex officio in king Henry the 8. time Ninthly the maner of debating of that cause in those dayes 10. Sir Thomas Mores reasons for maintenance of proceeding ex Officio the oath with summarie answeres to them 11. And lastly Inconueniences which come by the vse ex Officio contrary to the common lawe For proofe of some of which especially the first he is so plentifull in quotation onely of places without rehearsing their sayings out of the ancient Fathers counsels c. that for mine owne part I must confesse that vpon the first view of their names in his moster booke I was greatly astonished least I had too resolutelie defended a matter against such an armie of ancient Fathers and as it were against the generall consent of the olde Primitiue Church from which I meane not God willing casilic or rashlie to swarue But when I had approched neerer I well discerned this my feare to be all in vayne in that they had neither banner displaied nor weapons bent against this cause but rather against the faces of the aduersaries thereof as may plainelie appeare in the seuerall opportune places of this simple Discourse ensuing I may well resemble this dealing of the Note-gatherer vnto yong setters vp in London as Apothecaries and such like that be not at first well stored with stuffe who to furnish vp their shoppes vnto the best shewe are woont oftentimes to embellish them with good numbers of painted gallie pots boxes and glasses intituled on the outside euen with golden letters sometimes of such precious Waters Oyles Simples and other drugges of medicine which they neuer smelt of because such neuer came within them And perhaps I should saue him from suspicion of a greater fault that is eyther want of iudgement or of wilfull peruerting of the ancient Fathers if I should freelie deliuer my conceite in this behalfe which is that his leisure serued him not to looke what was indeede contained in those places which there hee quoteth but that hee did set them downe vpon trust out of the Pies or Indices of the sayd seuerall bookes wheresoeuer the bare wordes of Inquisition of Accusing of Oath or of Swearing was found For I dare auowe that hee which shal read thē in the Authors themselues will iudge that many of them were gathered together in condemnatiō of taking any oath at all an errour holden by the Anabaptists albeit being truely vnderstood according to the circumstances the places serue neither the one turne nor the other rather then that by any colour they may be wrested to speake either against oathes ministred in causes criminall or against proceeding by Iudges of Office Let thus much therefore if it be not too much suffice to haue deliuered in some generalitie touching the said Treatise and Notes both which are vndertaken for the whole substance of them to be here and there answered in this simple discourse ensuing THE CONTENTS OF the seuerall Chapters of the First part 1 THat a seuerall royall assent is not required to the executing of euery particular Canon 2 The particular distribution of all other causes to be proued to be of Ecclesiasticall conusance besides Testamentarie or Matrimoniall with a discourse of bishops certificates against persons excommunicated being a speciall point of their voluntarie iurisdiction where there is no partie which prosecuteth 3 That matters in the former chapter adioyned to Testamentarie Matrimoniall causes though properly they be not of Testament or Matrimony are of Ecclesiasticall conusance and how farre 4 Generall proofs out of statutes that sundry other causes besides Testamentarie or Matrimoniall are of Ecclesiasticall conusance 5 That suites for title of Benefices vpon voidance or spoliation likewise that suites for tithes oblations mortuaries c. for pensions procurations c. are of Ecclesiasticall iurisdiction is prooued by statutes especially 6 That suites for right of tithes belong to the Ecclesiasticall iurisdiction and how farre is shewed out of the books and reports of the Common law so of places of buriall and Churchyardes and of pensions mortuaries oblations c. 7 Of right to haue a Curate and of contributions to reparations and to other things required in Churches 8 Proofes in generall that sundry crimes and offences are punishable by Ecclesiasticall iurisdiction and namely idolatrie heresie periurie or laesio fidei and how farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments 9 That Simony Vsury defamation or slander beating of a Clerke sacriledge brawling or fighting in Church or Churchyarde dilapidations or waste of an Ecclesiasticall liuing and all incontinency are punishable by ecclesiasticall authority and how farre 10 That the matters and crimes here reckoned be also of ecclesiasticall iurisdiction and proofes that any subiects lay or other may be cited in any cause ecclesiasticall 11 That lay men may be cited and vrged to take oathes in other causes then Testamentarie or Matrimoniall 12 The grounds of the two next former opinions examined and confuted 13 That iudgement of heresie still remaineth at the Common law in iudges ecclesiasticall and that the prouiso touching heresie in the statute 1. Eliz. cap. 1. is onely spoken of ecclesiasticall commissioners
testamentarie nor matrimoniall But it may perhaps be sayd that great abuse may hereupon folow if the Iudge list to vexe a man wrongfully for he may pretend strong Euidence and Information or a common fame to be against a man or such like afore shewed whereof he is crediblie aduertised Well if it be but so much that the ecclesiasticall Iudge when he is called by his superiour must be able to make proofe of some such it is more then a Iudge or Iustice of Peace neede shew why he calleth any man into question or bindeth him to the peace or to the good behauiour And what lawes can be deuised but they may be abused whatsoeuer hath an vse hath also an abuse sauing vertue saieth 3 Aristot. in Rhetoric Aristotle Yet if he be an Ordinarie as hath bin aforeshewed such grounds of his proceeding must appeare in Acts Iudiciallie or be well prooued or else vpon an Appellation his proceeding is to be refourmed Besides is it not more probable that a Partie which will accuse shall doe it of malice to vexe oftentimes an innocent and to bring him into perill then a Iudge who reapeth no commoditie thereby but satisfaction of his duetie and is not he more like to deale in these causes with sinceritie then quilibet è vulgo yet by this opinion such are permitted to accuse and to preferre matter against any though no fame nor other matter no not so much as suspicion doe appeare against them Is it not then all one whether the innocent man be wrongfully vexed by the Iudge or by a priuate person who in a maner professeth that he doeth it of malice neuerthelesse for all this inconuenience and abuse that may happen it will not be thought conuenient I trust to damme vp the way from euery man both Iudge partie to preferre suites against offenders For if it should so be in short time there would bee neither Iudge nor other but lewd persons onely and they might liue as they list Yea but it seemeth vnreasonable will some man say that a man should be called into question and not to know his Accuser Surelie if the way of proceeding by Accusation be taken he is to know him but when by Enquirie though for the most part the Denouncer is knowen yet there be many weightie and very considerable causes why euen witnesses in cause of heresie and much lesse those that gaue the information should not bee knowen which euerie man of himselfe without rehearsall can weie and call to mind Besides this obiection maketh nothing against all proceeding ex officio For when it is grounded and instituted vpon a Presentment by officers speciallie appointed their names are knowen to him whose processe is made Yet I must tell you that hereby it commeth oft times to passe that meane men in parishes abroad and for very foule crimes do rather make choise to be bold with their oath and conscience then with a delinquent whom they haue some occasion to feare But I pray what necessitie is there in Iustice of knowing the Relatours may not a Iurie endite a man without any cause openly appearing as when the matter is either knowen to some of them aforehand or the Euidence as some times happeneth is not giuen openlie which cases happening the partie endited shall neuer know who gaue the information because they are sworne to keepe secret the Queenes their owne their felowes counsell Which course for the trouble of the partie supposed to be delinquent doeth amount to as much as if the Iudge ex officio mero had done it When the Lords of the Counsell haue a supposed malefactor in examination are they bound in Iustice or were it but good policie to signifie vnto him who it is that giues the information and to confront them together at first dash but howsoeuer these by circumstances should be thought fit to be caried it is neither to nor fro to the condemnation of all proceeding vpon the office of the Iudges onely as vniust whether a man know or be ignorant who made the Denunciation CHAP. XII A Replie to the Note-gatherers answers giuen to certaine reasons that haue bene made long agone for to shew the like course to be also practised in temporall courtes and an answere to his reasons brought to prooue that in proceeding of Office there is some contrarietie to the lawes of England SIr Thomas More in his aforesayd Treatises to shew that it is not simply vniust vpon some occasion to conceale the names of those that gaue the information alleageth that in like sort at the Common law a man may be endited none euidence openly giuen at the barre and that the enditers be bound to keepe the kings counsaile close To this the Note-gatherer answereth first that before the partie answere or bee arraigned he knoweth the matter wherewith he is charged So doeth he also in ecclesiasticall courtes so soone as the matter is obiected vnto him Secondly that the inditement goeth to particular matter it must be certaine And so do articles also in a court ecclesiasticall Thirdly that they which indite him shall not be Iudges of him nor arraigne him No more shall they who present or denounce a man to an ecclesiasticall Iudge be Iudges of him and therefore whatsoeuer the Note-gatherer say to the contrarie it is not aliter ex officio Fourthly that Iudges in such a case are to proceed circumspectlie And so must they doe in other cases as well as this and so must ecclesiasticall Iudges also Fiftlie that two witnesses must be at the arraignment vnlesse the partie willingly confesse the same And so it is in courts ecclesiastical For without the parties confession or two witnesses none may be absolutely conuicted And yet this which he here saieth is not generall in all arraignments For the statute 1 1. Edw. 6. c. 12. made the 1. yeere of K. Edward the 6. which hereunto he voucheth mentioneth to this purpose onely treason and misprision thereof The said statute is also repealed since by Q. Mary The other statute 2 1 2. Ph. Mar. cap. 10. 1 2. of Philip Mary that he alleageth is onely for such triall of treasons that be made treasons by that Act. For the self same Act doth appoint all other trials of treason to be made according to the due order course of the Commō lawes But though it were so that at all trials two witnesses should of necessitie be present though it were admitted that his other foure answers were true in fact that the courses of proceedings ecclesiastical were to the contrary yet these do not any way impugne or ouerthrow sir Th. Mores reason viz. that mē may be endited not know who gaue the euidence or preferred it in like sort as some know not who preferred vp matter of crime against them into courts ecclesiasticall and therefore this must needs be wholy impertinent and besides the purpose Vnto another reason
saide affirmatiō in that he confesseth Wolsey did grant benefices by way of Prouision for thereby he was within the very letter of the Statutes of Prouision and Praemunire and so consequently he preiudiced also the Kings regalitie and crowne and not Ecclesiasticall courts alone Yea and what is all this to the imposing of an oathe that we treate of seeing if it were true that euery practise of Antichristian decrees and Popish Canons were a Praemunire yet it may be truely affirmed that the very temporall Lawes of this Realme do allow vnto Ecclesiasticall Courts to minister such oathes as shall be prooued in the next chapter therefore not to be said to be practised by vertue of Canons only And also for that no Canons that are agreeing to those conditions and qualities which are required by the 1 25. H. 8. 27. H. 8. Statute of Submission of the Cleargie are Antichristian or Popish or foreine Lawes but are the Queenes Ecclesiasticall Lawes and Lawes of this Realme no lesse then such as were originally made within the land as is afore by occasion 2 Vide 1. part ca. 14. pag. 102. 103. shewed and prooued Insomuch as the Note-gatherer himselfe calleth them the ecclesiasticall Lawes of England Hee also telleth vs as to this purpose of a complaint by the Commons made 21. H. 8. vnto the said King touching grieuances by the Clergie offered but telleth not that it was this matter nor how iust or vniust the complaint was found to be nor yet of any remedy therein giuen He discourseth also of the particulars of an other complaint likewise made 23. H. 8. but hee doth not assigne oathes tendered in some criminall matter to be any part of that complaint The Note-gatherer saith the L. Audley then chosen Speaker did exhibite it and that it was for proceeding ex officio albeit the Treatisour do tell vs of many points besides which belike if he had pēned that complaint it should haue conteined This I haue answered in the second part of this Apologie Another reason by way of collection the Treatisor maketh at large thus viz. What if a Iustice by colour of his office should offer this generall othe to answer to all he will aske commit the partie refusing coulde any man iustifie his doing but rather crie out against him as a subuerter c Well howe strange a course soeuer hee maketh this and therefore so cryeth out neuerthelesse it may bee that little better hath beene vsed by some Iustices of Peace But I neither accuse any thereof nor wil excuse either them or any others which shal so deale either from the Treatisors or from any other mans outcries so that in this point we both agree But in one part of his Treatise he gathereth also thus against practising of Canons in ministring oath No Canons 1 25. H. 8. ca. 19. may be practised but such as be not contrary nor repugnant to the Prerogatiue royall nor to the lawes and Customes of this Realme but this Canon Law is not any part or portion of such lawes Whereupon it seemeth he would haue his Reader to conclude that no Canon at al may be practised First it is vntrue if you take the Canon Law indefinitely for all Canons absolutely and indistinctly to say that it is no portion of the Lawes and Customes of this Realme as hath bin afore shewed yea there was here an vse and custome thereof long afore it was accounted any parte of the Lawe of the Realme Secondly there be quatuor termini in this reason Lastly it consisteth all of Negatiues In both which respects it is vtterly inconcludent So that by all hitherto deliuered wee may perceiue that albeit there bee some diuersitie in sundrie the courses of proceeding betwixt the Ecclesiasticall and the temporall Lawes yet there is found not so much as any great diuersitie in the very point which is of ministring oathes in certaine criminall causes and much lesse is there any contrarietie or repugnancie in that behalfe Besides there is not so great diuersitie betwixt any part of the law Ecclesiasticall being now of force within this Realme and the Lawes temporall as is betwixt sundrie points of the customs of London the customes of the Stannerie the customes of Kent the customes of Halifax both in trying and executing offendors and by dealing by vertue of the Queenes Instructions at the Counsell of the Marches of Wales on the one side and betwixt sundry parts of the Common lawe on the other side as might but for auoiding of tediousnes by sundry particulars be exēplified yet none of those which practise thē are by reason of any such notable diuersity only thus threatned with danger of Praemunire In the last ranke of matters brought by him to this purpose I doe marshall the Treatisours shifting answeres vnto such obiections as himselfe imagineth will be or may be made by those who defend this kinde of oathe whereof we are now treating First to the obiection made of the like oathes ministred to defendants in causes criminall both in the Courts of Starre-chamber and Chancerie he answereth that if it were graunted that the like oathes be there vsed yet would it not followe that the same might be practised in courts Ecclesiasticall and why would it not followe vnlesse sayth he the like allowance thereto and consent of the whole Realme might be prooued Belike if it were not most euident he would also denie the like oaths to be vsed in those two courts The whole Realme is sayde to allowe and to consent vnto that which is enacted by Parliament Shall the same course then vsed also in the Chancerie that hath none Acte of Parliament to establish it be vnlawfull in his iudgement for hee cannot say that the whole Realme either indeede or representatiuely hath giuen consent hereunto albeit the prescription thereof be most ancient because al euery one in particular haue not had from time to time iudiciall matters there But yet since this prescription is good and will serue to mainteine that course there why shall it not also alike serue for Ecclesiasticall courts which haue reteined the practise of such oath beyond all memorie of man and beyond most Records nowe extant Neuerthelesse there be also Acts of Parliament to warrant the practise of these oathes in courts Ecclesiasticall vnlesse they could be prooued to be either contrary or repugnant to the Prerogatiue Royall or else to the Statutes lawes and customes of this Realme Neither yet are the examples of Starre-chamber and Chancerie to any other ende by vs alleaged but thereby onely to shewe that such defendants oathes inferring confession of some his owne crimes is neither to be holden vniust vnlawfull vnequall barbarous cruell nor yet Antichristian or Popish as they be challenged For a second answere hereunto he sayth that examples and Precedents be weake where an expresse lawe or certaine policie is to the contrary as if he should say though these two high
thereby authorised 14 That by the statute her Maiestie may commit authoritie and they may take and vse for ecclesiasticall causes attachments imprisonments and fines 15 That an ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie 16 That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excomm capiendo and that the said writ may and ought to be awarded vpon contempts rising on other causes ecclesiasticall then any of those ten crimes that be mentioned in the stat 5. Eliz. cap. 23. 17 Of a prohibition what it is where it lieth not and where it doth and how it ceaseth by a consultation and of the writ of Indicauit 18 An analysis or vnfolding of the two speciall statutes touching Premunire with sundry questions and doubts about that matter requiring more graue resolution THE FIRST PART OF an Apologie of certeine proceedings in COVRTS ECCLESIASTICALL wherein is chiefly shewed what matters be incident to Ecclesiasticall conusance and so allowed by Statutes and Common law CHAP. I. That a seuerall royall assent is not required to the executing of euery particular Canon IF no Canon or Constitution Ecclesiastiall might now be put in vre but such as her Maiesties expresse assent is first had vnto then do all their other opinions against the ordinarie iurisdiction ecclesiasticall stand in no stead and might be spared because this would serue to cut off all at once which they shoot at For none that exercise ordinarie iurisdiction haue hitherto had it in particularity which by the oppugners seemeth to be meant otherwise then by permission of law vnto euery of their proceedings Neither in trueth for the infinitie of it and troublesomnesse to procure such assent from her Maiestie for euery particular matter dioecesse of this Realme from time to time were it possible to be vsed Now if Ordinartes from whom either mediately or immediately appellations do lie vnto her Maiestie in the Chancerie by reason of the want of such particular assent vnto the execution of euery canon shall according to this conceit haue nothing to doe then cannot the Queenes delegates neither to whom appellations from Ordinaries doe come haue any thing wherein to bestow their trauell and therefore this point seemeth first of all meet to be cleared and to be bestowed in the first ranke The absurdity of this opinion whosoeuer were the hatchers of it will easily shew it selfe For if matters testamentary matrimoniall which all they grant to be ecclesiasticall right of tithes and sundry other causes which shall be also prooued so to be shall not ne can not by reason of this want be dispatched as now they are by ecclesiasticall iurisdiction and yet can not be dealt in by any other authoritie according to any law now in force then is there a maine imperfection in the policie of this Common weale viz. For men to haue a right and yet no likely or readie meane to come by it and for grosse oftences to be committed that are by law punishable and yet no man sufficiently authorized to execute such lawes The iudgement of whole Parliaments kept in seuerall Kings and Queenes reignes since that act whereupon this fancie seemeth to be grounded so many as haue had cause to speake of the iurisdiction ecclesiasticall doe also fully conuince it The 1 25. H. 8. ca. 19. statute for delegates vpon appellations doth argue that Ordinaries might without further leaue obteined as in former times they did execute their iurisdiction ecclesiasticall For if there were to be no more ordinarie proceedings till the king should giue his assent to the execution of euery canon for what vse should appellations from the decrees and iudgements of Ordinaries be there prouided for Likewise 2 27. H. 8. ca. 20. 32. H. 8. cap. 7. two statutes were not long after prouided in assistance of iurisdiction ordinary and for the better and speedier recouerie of tithes in Courts ecclesiasticall according to the course of the ecclesiasticall lawes in that behalfe And the 3 34. 35. H. 8. cap. 19. like was also enacted for recouerie of pensions procurations c. withholden In the time of K. Edward the sixt in 4 1. Ed. 6. cap. 2. a statute since repealed by queene Marie a great number of particular causes of iurisdiction ecclesiasticall are there by the way rehearsed that Ordinaries other ecclesiasticall Iudges might and did then deale in In the time of queene Marie before the supremacie was giuen vnto the Pope the 5 1. Mar. cap. 3. act for not disturbing of diuine seruice or preaching reserueth the iurisdiction that Ordinaries then had for punishment thereof by lawes ecclesiasticall ouer and aboue the penalties of new thereby inflicted In the Queenes Matesties 6 1. Eliz. cap. 2. time that now is by the act for vniformitie of Common prayer Ordinaries c. may enquire c. and punish the violations of that act by censures c. as heeretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes The Statute De excom capiendo reckoneth 1 5. Eliz. ca. 23. vp particularly diuers Crimes and offences Ecclesiasticall punishable by that iurisdiction which were hindered much from punishment that apperteined for want of due execution of that writte De excom capiendo and therefore prouideth remedie therein Which necessarily argueth the continuance and approbation of execution of Iurisdiction Ecclesiasticall by Ordinaries without further obteyning of leaue By the statute against periurie made at the same time 2 5. Eliz. cap. 9. it is prouided that it should not extend to Courts Ecclesiasticall but that offenders in periurie or subornation in a Court Ecclesiastical shall and may be punished by such vsual and ordinarie Lawes as heretofore haue bene and yet are vsed and frequented in the saide Ecclesiasticall Courts which prooueth the vsuall practise of Iurisdiction Ecclesiasticall hitherto vsed without any speciall assent to be lawfull The statute against vsurie prouideth 3 13. Eliz. cap. 4. that such vsurie as is aboue ten pound in the hundred by yeere shall not withstanding the other penalties there newly inflicted be also punished and corrected as in times past by the Lawes Ecclesiasticall And by the 4 13. Eli. cap. 10. statute of dilapidations the remedies that by the Lawes Ecclesiasticall were afore giuen against executors and administrators of incumbents are there extended also to donees and alienees to be by the same authoritie dealt with In the which clauses of statutes there is no repeale of any former particular statute or Lawe nor any generall non obstante conteined And therefore if those Parliaments had bene of this iudgement that no Canon might now be put in vre without the Royall assent first obteined there woulde haue bene added these or some like words viz. They the said Ordinaries first obteining the royall assent for the putting in vre of such Canon as they minde in that cause to
with doe not stand against it and such for the most part are Institutions probate of Wils and committing of administrations visitations Certificats of Bishops into the Q. Courts ordeining of Reall compositions in matters ecclesiasticall c. But something must here be said touching certificats of Bishops because none so fit a place hereafter doth fal out for this matter A little Treatise set out in the time of King Henry the eight and printed by Berthelet cum priuilegio prouing that by the lawes of this Realme the B. of Rome had not ne ought euer to haue had any supremacie here doeth 1 Cap. 1. thus write of these certificates If saith he Excommunication Bastardy Bigamie Deposition or Deraignement of a religious person or Diuorce be certified by a Bishop of this Realme it is admitted in the Kings Courtes but the Popes certificate is not admitted And as certificates of Bishops be in these cases admitted at the common lawe so haue sundry statutes since authorised their Certificates duely made into the Queenes Courtes in certaine other cases Neuerthelesse I finde two cases in the said Treatise where the Certificate of a mans excommunication from a Bishop shall not disable the partie excommunicated from his action as regularly excommunication doth when it is duely certified For first 2 Ibidem ca 4. if a Bishop be a partie to a suite and doe excommunicate his aduersarie such excommunication though it be certified doeth not disable his aduersary in his action Secondly 3 Ibidem where an action of debt was brought by an executour and an excommunication vnder a Bishops seale was pleaded against such executour this was adiudged no good plea because the executour was not to recouer any thing to his owne vse and for this there is alledged 14. and 21. Hen. 6. But if this were the onely ground and reason of such iudgement then where this reason is not found true in facte as it may often happen if the goodes and chattels be great the debtes and legacies small and where the executour hath clausulam de residuis by the will viz. all the remnant of the goodes and chattels bequeathed to him it woulde seeme to me vnder correction that in such a different case the lawe also should be otherwise because much commeth to the executours owne vse in particular This certificate of excōmunication by Bishops of all the others is most in vse and would be of more vse to the great cōmoditie of her Maiestie especially vpon the statute de excom capiendo and to the terrour of sundry malefactors were it not for the chargeablenes of that course vnto Ordinaries whom the tenth man that is certified doeth not satisfie againe and for the manifolde abuses about the execution of that writte committed by vnder officers and were it not that iura libertates the lawes or rightes and liberties of holy Church graunted and confirmed by the great Charter are not so inuiolably in these dayes mainteined as was meant by 1 15. Ed. 3. ca. 3. those actes of Parliament which doe exacte othes for obseruation and defence of them It is a libertie peculiar to this Church of England aboue all the Realmes in Christendome that I reade of that if a man stande wilfully fourtie dayes together excommunicate and be accordingly 2 Nota interlin pag. Regist. 65. b. certified by the Bishop into the Chauncery that then he is to be committed to prison by vertue of a writ directed to the Sherife Notwithstanding that in one precedent in the Register of this writ it 3 Regist. in breu original pag. 68. a. is said quòd huiusmodi breue nostrum de gratia nostra procedat For a note in the same booke vpon the same worde vsed in another writte doth teache vs that such clause is but vsed pro honore regio etiamsiad id de iure teneatur And it appeareth by sundrie olde precedents of writtes there that the graunting of this writ is by lawe required as where in a writ de excommunicato capiendo 4 Reg. in br orig pag. 65. it is said quòd potestas regia sacrosanctae ecclesiae in suis querelis deesse non debet And in sundry other writtes of that kinde it is 5 Ibid. pag. 66. a. b. 68. a. 69. b. 65. b. affirmed to bee secundum consuetudinem Angliae which is the Common lawe of this Realme And therefore in other precedents of the same writte the King saith 6 Ibid. pag. 69. a. thus Nolumus quod libertas ecclesiastica per nos vel ministros nostros quoscumque aliqualiter violetur And againe 7 Ibidem Iura libertates ecclesiasticas illaesa volentes in omnibus obseruari In these Certificates the Bishops and others hauing in some cases authoritie to certifie as the Chauncellour of Oxford the Custos Spiritualitatis of a vacant See and the Bishops Officiall and vicar generall ipso in remotis agente that they make none errour must remember to obserue these three things First that it be 8 Noua nat breu pag. 64. f. expressed therein that the partie against whom they doe certifie is excommunicated maiori excommunicatione because for the lesser excommunication as happely for companying with an excommunicate person a man shal not be imprisoned Secondly that 9 Ibidem it be certified that he was by name and particularly so excommunicated and not in grosse in companie of a multitude as was often done in elder times or indefinitely and in generalitie as when the BB. excommunicated all whosoeuer should violate any part of the great charter For that excommunication saith Fitzherbert in that place must growe vpon a speciall suite against a man either ex officio or by a partie whereupon a Significauit may be grounded Thirdly 1 Reg. in bre orig pag 69. b. notainterlin pag. 65. b. if any inferiour officer vnder the Bishop or his Archdeacon did excommunicate the partie certified yet must the Bishops Certificate runne that it was done nostra autoritate ordinaria But that the expressing in the certificate of a particular cause of the excommunication is at the Common lawe of necessitie required I cannot gather out of any place of the Register or of Fitzherberts Natura Breuium It is true that when the proceeding is vpon any of the tenne crimes mentioned 2 5. Eliz. ca. 23. in the statute made for that purpose the particular originall cause must be expressed in the certificate Neuerthelesse when the proceeding is vpon any other crime ef ecclesiastical conisance orin matters testamentary matrimonial or for tithes c. whether moued of office or at the instance of the partie therethe Common lawe as it was afore is reteined Nowe I finde precedents of these writtes in the Register wherein no particular originall cause but onely generall be expressed which as in other certificates of Bishops as touching bastardy c. the Court beleeueth without further trauerse or examination namely
from his benefice sequestration of a benefice interdiction of some place from hauing seruice or sacraments there administred interdiction of some certaine acte as not to marry whiles a suite matrimoniall dependeth and excommunication the lesse and the greater I doe also finde in writers of the Ciuil and Ecclesiasticall lawes certeine offences affirmed to be of ecclesiasticall conusance which may seeme euen in this Realme to be such albeit I doe not expresly reade them to be so accounted in statutes or reportes of the Common lawes As for violation or perturbation of liberties ecclesiasticall for admitting of excommunicated persons vnto Quaere of these two first named see for the first Lyndwood e. oecernae de poenis verbo regis Angliae action or testimonie in a temporall Court forging of letters and matters ecclesiasticall as testimonials for ordeining c. or vsing and putting them in practice wittingly burying excommunicate persons or notorious heretikes in the vsuall places of good Christians abbettours and voluntary company keepers with persons excommunicate and diggers vp of corpses buried CHAP. III. That matters in the former Chapter adioyned to testamentarie and matrimoniall causes though properly they be not of testament or matrimonie are of ecclesiasticall conusance and howe farre TOuching such as I haue adioyned for necerenesse of qualitie vnto matters testamentarie First a mans last will whereby legacies be giuen but none is therein made executour cannot be called a testament The like is to be said of a codicill and a legacie though it be giuen by testament yet may it also be giuen by such a last will and can in neither case be properly called a matter testamentary because it is but Delibatio haereditatis or successio particularis And by suite for a legacie neither the testament commeth directly and principally to be proued nor yet to be impugned But much lesse may administrations and letters ad colligendum be properly accounted matters testamentarie because they are committed when a man dieth intestate or per viam intestati Besides that the course of graunting administrations was not at the common law but came in by statute long after this writte of Prohibition 31. Ed. 3. cap. 11. whence this controuersie springeth is pretended to haue beene framed As for diuorce which by like reason I ioyned with matters of matrimonie because it tendeth to the ouerthrowe and dissolution of marriage it cannot be termed properly a matter of matrimonie though no man can be diuorced but he which hath beene married no more then blindnesse may be called seeing for that nothing can truely and properly be said to be blind but such as either once did see or by nature of the thing should haue eyes Priuatio enins praesupponit habitum This appeareth also by 24. H. 8. ca. 12. a statute where diuorce is contrediuided and reckoned as a diuers suite from a cause of matrimonie Likewise iactitation of marriage because it tendeth by the intention of him that bringeth the suite to be cleered of a matrimonie or contract matrimoniall that is pretended by the other partie it can no more properly then the former be called a matter of matrimonie As for goods or chattels that are promised with a womā in marriage who seeth not that it is a meere circumstance nothing touching the validitie or inualiditie of a matrimonie yet neuerthelesse I take it no man is so wedded to his opinion that he will deny the conisance of these matters to belong to the Ecclesiastiall iurisdiction aswell as causes properly termed testamentary or matrimoniall But I purpose to make the matter a litle more plaine and withall to shewe aswell when and howe some matters testamentary themselues as the rest annexed to testamentary or matrimonial causes which I finde touched in the lawes of the realme doe belong to the conisance of an ecclesiasticall Court when and howe vnto a temporall Court beginning first with testaments 1 M. 2. H. 3. Fitz. testa 4. These are to be proued before Ordinaries sauing in certaine places where the lord in his temporall Court by custome prooues the testaments of his tenants The Canon lawe doeth not permit an Ecclesiasticall person to declare his will and to dispose of such goodes as he hath gotten by reason of his ecclesiasticall promotions as he liste but they must be left to that Church by which he gotte them But 2 Treatise of Const. prou legatine printed by Thomas Godfrey tempore H. 8. cap. 13. the lawe of this Realme is that Clerkes may make their willes as liberally and freely as any Lay man may and that though they haue them for their spirituall ministration And therefore by reason of this contradiction and repugnancie to the Common lawe such Canons are here of no force nor in practice Touching executours it is sometimes to be determined by the Common lawe in what cases and who may be made an executour for a 3 T. 12. H. 7. sol 22. woman by the Common lawe may make her husband executour of such things whereof she was executour to another before or of a duetie due vnto her before co◅erture or of rent being behinde vpon a lease made vnto her for terme of life or of a lease or of any thing whereof the possession must be attained by action but she cannot make him executour of that which she hath in possession for by the very entermariage the propertie is in her husband albeit by the Spirituall law aswell in the one case as in the other she may make her husband executour which saith Tremayle and Frowicke whether it be their law or no is not to be disputed by the Common law because we are ignorant and cannot iudge what is their lawe And if a man 4 T. 12. H. 7. be cōdemned in costs in a court ecclesiastical after die making an executour by the opinion of King smell it is as good reason to sue the executour in a spirituall cause according to the Spirituall Lawe as to sue him for a temporall matter in the Temporall Lawe Else saith he when an amends is adiudged in a Spirituall court and the partie dieth the ether shoulde be without remedy which were no reason and none did gainsay it But a 1 H. 6. H. 3. referente Fitzh tit prohib 17. man may not sue an executour in a Spirituall Court for the testators debt albeit if the testator enioyne the executor to pay the debt to him hee may then sue for it in Court Spirituall because of the iniunction and promise And this sheweth how an Executor may be sued or not sued in an Ecclesiasticall Court Now an Executor may sue another in a Spirituall Court touching his testatours goods in this case viz. If a 2 T. 4. H. 3 referente Fitzh tit prohib nu man deuise or bequeath corne growing or goods vnto one and a stranger will not suffer the executor to performe the testament for this legacie he shall sue the stranger
for it in a Spirituall Court But if a man take from the executors goods bequeathed for this the executor must vse his action of trespasse and not sue in the Spirituall Court for 3 2. R. 3. 17. executours can not sue for the goods of their testatour in a Court Ecclesiasticall but at the Common Lawe If 4 T. 18. Ed. 2. testa 6. a testament beare date at Cane in Normandie and be prooued in England the executour may vpon such testament haue action Of legacies or deuises it will be sufficient to touch a few points In the books of the Common Law it is set downe that they 5 37. H. 6. pag. 9. shal be recouered in a Spirituall Court and not in a Court Temporall Therefore 6 H. 8. H. 3. ex Fitzh tit prohib 19. if a termor of certaine land bequeath his croppe and die the Spirituall Court shall hold plea thereof Likewise 7 46. E. 3. fol. 32. where one sued in Court Christian for goods deuised by testament which another claimed by deede of gift and thereupon brought a prohibition and shewed the deed of gift and alledged withall that the defendant was neither executor nor administrator yet because it was by name of a legacie it was adiudged to belong to the Spiritual court by which it was to be determined and the circumstances to be tried whether the deuise were good or not And in respect a man hath such action against the executor for a legacie before the Ecclesiasticall Iudge therefore the 8 M. 20. E. 4. 9. legatarie or deuisee may not of his owne head take the goods or chattels deuised to himselfe out of the possession of the executour And for this also especially because 9 T. 2. H. 6. 15. the Lawe doeth not binde that the legacies shall be assigned payed or deliuered untill the debts of the testatour be satisfied and payed But because 1 Bracton lib. 5. cap. 16. a franke tenement or inheritance deuised is not demaundable in an Ecclesiasticall Court but in the Temporall therefore the 2 Perkins tit deuises legatarie according to the deuise without further assignment or deliuerie may enter into them after the death of the testatour If a man 3 Reg. in br orig pag. 48. b. by his testament do bequeath goods to the fabricke of a Church for this legacie the executors may be sued in court Ecclesiasticall Also if 4 Liberties of the Clergie by the Lawes of the Realme by Iohn Gooddall Printed by Rob. Wier tempore Hen. 8. wardship or chattels reall as a lease be bequeathed by will a man may sue for them in the Court Ecclesiasticall but not so for lands deuised If a 5 Ibidem testatour by his testament doth charge his executors to pay his debts the creditours in respect of such charge may sue for them in the Court Ecclesiasticall When a 6 Ibidem man as I doe interprete it being executour or legatary and so enioyned by will doth refuse to collate or erect a Grammer Schoole and is therefore sued in a Court Ecclesiasticall if he purchase a prohibition the other partie shall haue a consultation Touching committing of administrations by the very statute whereby they were established it is enacted that 7 31. Ed. 3. ca. 11. where a man dieth intestate the Ordinaries shall depute the next and most lawfull friends of the dead person intestate to administer his goods which deputies as they haue action against others in the Kings Court for to recouer the debts owing to the dead so in that Court there lieth action against them for such as the dead did owe but they are made accountable to the Ordinaries as executours be in the case of testament c. And 8 36. H. 6. 31. referente Perk. tit testa when such letters of administration be shewed vnder the Ordinaries seale or when a testament is so shewed a man hath no direct trauerse against it in the Temporall Court That to sequester the goods of an intestate cōmonly called letters ad colligendum belongeth to the Ordinary appeareth by this case If an 9 7. H. 4. 18. Ordinary sequester the goods of an intestate to another man and a third disturbeth here the Ordinary hath an action of trespasse at the Common law though the sequestration be a spiritual acte because he had possession yet he cannot haue an action of debt albeit actions of debt in this case runne against him But if the Ordinary do sequester the goods ex officio or for any contumacie which giueth no possession to him there the Spirituall Court shall haue iurisdiction That diuorces are of Spirituall iurisdiction is apparant by many bookes at the Common Lawe needlesse to be rehearsed but whereas prohibition 1 12. H. 7. 24. lay in Corbets case vpon a suite brought in the Spiritual court to repeale a diuorce and cōsequently to make the issue of the second wife bastards whereupon no Consultation would be graunted which may therefore seeme to make this point doubtful it was not for that the Court Ecclesiasticall might not hold plea of diuorces but the prohibition lay because the title and discent were comprised in the libell and this was agreed to be the cause by the Court and so it is 2 Brooke tit prohib nu 9. reported by Brooke And if a man giue goods in 3 T. 13. H. 3. referente Fitzh tit Prohib nu 21. mariage with a woman vnto the husband if they be afterward diuorced it was holden that the woman diuorced may wel sue for those goods in Court Christian. But if any further doubt should herein vpon the former case of Corbet remaine That statute which 4 24. H. 8. ca. 12. affirmeth that diuorces by appellation were caried forth of this Realme vnto Rome like as other causes Ecclesiasticall of testament of matrimonie of right of tithes oblations and obuentions and appointeth how delegates vpon such appellations made shall determine them all within the Realme doth put it cleare out of doubt Likewise where it is affirmed by a farre elder statute that Ordinaries are 5 18. Ed. 3. pro Clero cap. 2. both to certifie and trie of bastardie and bigamie which for the most part cannot be done without the conusance of diuorces whereupon the former especially doth depend As for 6 Regist. in bre iudicialibus pag. 5. a. 26. a. questions touching Bastardie or Legitimation of any it appeareth that at the Common Lawe they do belong to a court Ecclesiastical and vpon a writ are to be certified into the Queenes Courts by the Bishop If 7 Regist. in bre iudic pag. 53. 2. a man be spoyled of the possession of his wife so farre forth as the Action doth but extend to be restored to her possession it must be handled in a Court Ecclesiasticall notwithstanding 8 Goodall of the liberties of the Clergie by the Lawes of the Realme sayeth Gooddall in
statutes and reports some whereof were made not long after and so from time to time downeward till these late challenges doe make it very manifest It is prouided by Statute that 2 24. Edw. 1. stat de consultatione the Chancellor or chiefe Iusticer of the King vpon sight of the libell whereupon any prohibition is brought if the case cannot be redressed by any Writte out of the Chancerie but that the Spirituall Court ought to determine the matter shall write to the Iudges where the cause was first mooued to proceede the prohibition directed notwithstanding So that wherein soeuer by custome and liberties of Holy Church Iudges Ecclesiasticall were wont to proceede if no Writ lie thereupon in Chancerie they may still holde plea and take conusance Also in the conclusion of the Statute of Articuli 1 Artic. Cleri 9. Ed. 2. ca. 16. Cleri where sundry matters besides Testamentarie and Matrimoniall are mentioned it is thus enacted that the Prelates Clergie and their successours shall vse execute and practise for euermore the Iurisdiction of the Church in the premisses after the tenor of the answeres aforesaid without quarell inquieting or vexation of our heires or any of our Officers whatsoeuer they be Likewise it is by Parliament 2 15. Ed. 3. ca. 6. accorded that the Ministers of holy Church for money taken for redemption of corporall penance nor for proofe and account of Testaments or for trauaile taken about the same nor for solemnitie of marriage nor for other things touching the Iurisdiction of the Church shall not be empeached nor arrested nor driuen to make answere before the Kings Iustices nor other Ministers and thereupon shall haue Writs in the Chancerie when they will demaund Where we finde that other things besides Commutations matters Testamentarie and Matrimoniall doe belong to the Iurisdiction of the Church And to like effect after in the same Kings dayes 3 18. Edw. 3. pro Clero c 6. Commissions to enquire of Iudges of Holy Church whether they made iust Proces or excessiue in causes Testamentarie and others which notoriously pertaine to the conisance of Holy Church were from thencefoorth forbidden Therefore these Statutes being still in force if Iudges Ecclesiasticall shall be found but to deale as they ought in matters appertaining meerely to Iurisdiction Ecclesiasticall how the vexations impeachments driuings to answere and strange enquiries against them vsed in some places may be iustified by Lawe is worthie the consideration of those that are or shall be procurers therein In a statute of King 4 1. Ric. 2. ca 13. Richard the second mention is made that the pursuites for Tithes and for some other causes of right ought and of olde times were wont to pertaine to the Spirituall Court. In a Statute of King Henrie the eight it is 5 24. H. 8. c. 12. in the praeamb testified that both the authorities and Iurisdictions Spirituall and Temporall doe conioyne together in the due administration of Iustice the one to helpe the other And that the Lawes Temporall are for triall of propertie of landes and goods and for the conseruation of the people of this Realme in vnitie and peace without rauin and spoyle And in the bodie of the Statute are particularly named and reckoned for Ecclesiasticall besides causes Testamentarie and Matrimoniall these viz. diuorces right of tythes oblations and obuentions of which it is affirmed that the knowledge of these causes by the goodnesse of Princes of this Realme and by the Lawes and customes of the same appertaineth to the Spirituall Iurisdiction of this Realme And because by that Statute remedie was onely prouided that appellations in those aforesaide cases should not be prosecuted out of the Realme there being also many other causes of Iurisdiction Ecclesiasticall wherein a like remedie was conuenient to be had therefore the next yeere after it was enacted that 1 25. H. 8. c. 19. all maner of appeales of what nature or condition soeuer they bee or what cause or matter soeuer they concerne shall bee made and had by the parties grieued c. after such maner as is limitted for causes of appeales in matters Testamentarie Matrimoniall tythes c. in the said former statute mentioned In a Statute of King 2 1. Ed. 6. c. 2. Edward the 6. besides matters of voluntarie Iurisdiction Ecclesiasticall as collations presentations Institutions inductions letters of orders and dimissories are reckoned in generall as Ecclesiasticall all suites and causes of instance betwixt partie and partie and all causes of correction And in particular all causes of bastardie or bigamie and enquirie De Iure patronatus besides matters of Testament of administration or of accounts vpon them And 3 5. Eliz. c. 23. in one Statute in her Maiesties reigne are reckoned in particular as the more grieuous sort of matters of correction in Ecclesiasticall Courtes heresie refusing to haue a childe baptized or to receiue the holy Communion or to come to diuine seruice errour in matters of religion or doctrine now receiued incontinencie vsurie Simonie periurie in the ecclesiasticall Court and Idolatrie And therefore Iudges Ecclesiasticall may lawfully cite men in certaine other causes besides Testamentarie or Matrimoniall and ought not eonomine tantùm to be vexed vnquieted impeached driuen to answere or arrested CHAP. V. That suites for title of Benefices vpon Voidance or Spoliation likewise that suites for tythes Oblations Mortuaries c. for Pensions Procurations c. are of Ecclesiasticall Iurisdiction is prooued by statutes MAtter 's and suites for the title of Benefices ecclesiastical so they touch not the trial of the patronage do belong also to the knowledge and iurisdiction of a court ecclesiastical by the lawes of the Realme For conisance of voidāce of benefices 1 25. Ed. 3. pro Clero ca. 8. and the discussing thereof de iure doe belong to Iudges of holy Church and not to the Lay Iudge The Common 2 Treatise of constitu Prou. Legatine ca. 9. printed by Tho. Godfrey tempore H. 8 lawe doth mention fiue causes of auoidance of a benefice viz. death resignation depriuation creation and cession But whether it may be deemed void in law vpō any of the last foure meanes of auoidance is by the law ecclesiasticall determinable And by the bookes of the Common lawe 3 M. 22. Edw. 4. fol. 24. whether the Church be full or not full or the Clerke able or not able is triable in an ecclesiasticall Court Townesend For if an 4 Regist. in br orig pag. 55. b. inferiour Ordinary shal differ or refuse to admit or institute a Clerke presented and the Clerke bring his double Querele being of the nature in some sort of an appellatiō from the Archbishops court and the aduerse parte doe bring a prohibition the said Clerke may haue hereupō his consultation so that the court eccles by colour hereof deale not with the right of patronage of the benefice Likewise for spoliation of a
7. 2. 3. Ed. 6. cap. 13. statutes for tithes do now stint this strife and makes both cases to be Ecclesiasticall Vpon 5 14. H. 4. 17. corne carried away whereupon it comes to be tried betwixt two Parsons of Churches who hath right to the tithes this triall belongeth to the spirituall Court and is not vpon action of trespasse to be brought to the Common law And so it was adiudged albeit that the defendant there said that his Parsonage was then in lease But if they 6 39. Ed. 3. 23. 5. H. 5. 10. had ioyned issue whether the place whence the sheaues were taken were in the one Parish or the other then it should haue bene tried at the Common law because 7 Brooke tit Iurisdict the bounds of a Parish shall be tried by the Countrey as is there said Yet in a litle Treatise 8 An answere to a letter cap. 1. printed by Tho. Godfrey circa 26. H. 8. printed by Thomas Godfrey in K. Henrie the eights time it is testified that it hath bene holden in times past c. that the diuision and distinction of parish from parish is a thing so meere spirituall that no man may doe it but the Clergie which asseueration though he disallow if the Clergie claime it by any immediate power giuen them from God yet saith he of these and of diuers other things it is no doubt but they haue holden plea in times past rather by a custome and by a sufferance of princes then for that they be meere spirituall or that they of the Clergie had authoritie so to do by any immediate power of the law of God So that he alloweth diuision and distinction of parishes to haue bene of olde of ecclesiasticall conusance though to be deriued from the kings prerogotiue royall And it 1 Prou. constit aeternae sanctio de poenis ibi Lindwood verb. limitibus paro chiarum appeareth by a constitution prouinciall made in a Synode at Lambhith holden vnder Boniface then Archbishop of Canterburie in the yeere of Christ 1260 that the Clergie then vndoubtedly held and so practiced touching limites parochiarum that they meerely belonged to the court ecclesiasticall And Lindwood comming 200 yeeres or thereabout after him in his Commentaries or Glosses therupon maketh no doubt of it but onely quoteth Canon law for it If a Parson grant to 2 M. 8. Edw. 4. fol. 13. me by deed all the tithes of his benefice and yet afterward he sueth me in a Court Christian for the tithes of mine owne landes whereupon I bring mine action of couenant in the Temporall Court neuerthelesse I shall not haue a prohibition because I may plead that matter in barre in the Ecolesiasticall court Danbie and Chok But if a rent reserued vpon a lease of tithes or offerings be 3 44. Ed. 3. 32. sued for in a Spirituall court there lieth a prohibition for this is a Lay rent and so Bracton 4 Lib. 5. ca. 16. holdeth in the place before alleged agreeable to the statute of Articuli Cleri It is holden 5 Regist. fol. 38. that if a Patron hauing an Indenture to be quit of certeine tithes be sued in a Court Christian for those tithes hee shall haue a prohibition But aske whether this precedent of the Register notwithstanding hee may not haue a consultation by the opinion of Danbie and Chok afore recited and the rather in this case then in the former by how much it is more to be presumed to be a Symoniacall compact against him that is Patron For if it be not Symoniacall he may plead this couenant in barre in a Court ecclesiasticall as well as in the former case The competencie of the Court for suite of tithes dependeth also much vpon the consideration of the parties that contend for them For 6 38. Edw. 3. 6. 31. H. 6. 11. 7 in an action of trespasse brought at the Common law the defendant said that the corne whereof the plaintife complaineth was growing in D. which is parcell of M. where he is Parson and thereby he claimeth And because in the pleadings they were both named Parsons the opinion of the Court was that it was out of their iurisdiction In another 7 Hill 7. H. 4. fol. 35. per quosdam libros 102. per alios action of trespasse brought against a Lay man that claimed by lease from another Parson notwithstanding that by M. 44. Ed. 3. it was alleged that the Kings Bench in such case shall haue iurisdiction because it is betweene a Lay man and a Parson and that by Articuli Cleri by the contract transcunt decimae in catalla yet because it was of tithes which they might reconer in Court Christian Gascoigne held that the Temporall court ought to be out of iurisdiction for said he though it had bin so done afore yet it shall not be done so by vs here And of the same opinion was Moile in another like action of trespasse that 1 6. Ed. 4. 3. betweene a Parson and a Fermer of another Parson action for tithes lies in a Spirituall court because the Fermer claimes the tithes as due to himselfe during his terme which none gainsaid But vpon the former of these two last cases Brooke 2 Brooke tit Iurisdict 82. doth thus collect that it thereby appeareth cleerely that vpon contention for tithes betweene a Parson a Lay seruant of another Parson the Spirituall court shall haue iurisdiction For saith he the seruant doth claime to the vse of his Maister and not to his owne vse vpon any Lay contract Yet how this collection may stand together with other iudgements else-where reported to be giuen may mooue some doubt For in 3 31. H. 6. 11. 1. H. 6. 5. an action of trespasse brought by a Parson against the seruant of another Parson the seruant iustified for tithes of his Maister and thereupon demanded iudgement whether that Court would holde plea thereof and it was not allowed because the said defendant was a Lay man Likewise 4 6. Edw. 4. 3. it an action of trespasse brought by a Vicar for corne taken by the seruant of another Parson that claimed them as tithes of his Master and the plaintife claimed them as tithes due to his Vicarage it was adiudged by three that the Court temporall had iurisdiction because the plaintife had none action against the seruant in a Court spirituall at least as is there affirmed Markham seemeth to be of opinion that if any 5 38. H. 6. 19. part of right of tithes do come in debate betweene two Patrons that there the court Ecclesiasticall can not holde plea. And if 6 25. H. 8. vt refert Brooke tit Iurisdict nu 95. the Lord of a Mannour claime tithes of certeine landes in D. to finde a Chapleine or Curate in D. therewith and the Parishioners there claime those tithes likewise for the selfe same end It was deliuered for law that
drawe it to the Common lawe it should seeme by all reason of his owne nature to be a matter belonging to the conusance of a court ecclesiasticall accordingly as alwayes without impeachment it hath bin vsed Yet I finde in the bookes of Common lawe that 3 22. H. 6. 32. an action of the case was mainteinable for not saying diuine seruice albeit it was there confessed to be a spirituall matter What the circumstances and cause thereof was that it was so ruled in that case Quaere It appeareth by the 4 Reg. pag. 56. a. Register that a prohibition being brought vpon a suite in court ecclesiasticall for withholding a Chauntery a consultation was after graunted whereby is affirmed that pro subtractione Cantariae debita punitione pro huiusmodi subtractione the suite belongeth to a court ecclesiasticall and the like therefore must needes be thought of a Chaplaine or Curate not found to say diuine seruice where it ought to be either by composition or by prescription But that parishioners ought to be contributories and may be cited in a cause of contribution towards the reparations of the body of the Church termed Nauis ecclesiae and to the charges of buying and furnishing other vtensiles ornaments and bookes required by lawe to be bought of the common charge doth appeare partly by the Register and partly by Fitzherbert in his noua natura breuium who doeth gather it thence For if saith he a 1 Fitzh no. na br tit Consult fol. 50. Bishop doe cite any of the parishioners of a Church to be contributorie to the reparations of the parish Church or of any Chappell annexed to it if the partie sue a prohibition directed to the Bishop surmising that he is impleaded touching lay fee in court Christian the Bishop shall haue a consultation vpon this matter shewed in the Chancerie on his behalfe And partly also by the Iniunctions which were set out by the Queenes Maiestie in the first yeere of her reigne and are vnder the great seale of England for better record of the matter her highnesse being thereunto authorised by acte of Parliament For in 2 Iniunctions published 1559. these are conteined sundry vtensiles ornaments bookes and other things that by the common cost of euery Parish shal be prouided and from time to time supplied and whether they be wanting or no is to be enquired by ecclesiastical Iudges and the obseruation of the Iniunctions is by them to be vrged against those that shall infringe any of them by processes and censures ecclesiasticall according to the course of that lawe And herein the Iniunctions followe but the Cōmon law For 3 Of the liberties of the Clergie by the lawes of the Realme if a terre-tenant holding land that hath vsually paid for such tenement a pound of waxe or such like vnto the Church doe withhold it the Church-wardens may sue him for it in a court eccles Also 4 Ibidem if a man that withholdeth Church goods doe by his last will enioyne his executours to make deliuerance any of the Parish may sue the executours for them in court ecclesiasticall For proceeding ecclesiastically against refusers to contribute vnto the reparations of the body of the Church there remaineth a iudgement in a consultation 5 Reg. pag. 45. 2. recorded in the Register to this effect viz. vobis significamus quod super reparatione emendatione defectuum corporis ecclesiae iuxta consuetudinem approbatam facienda procedere poteritis ea facere quae ad forum ecclesiasticum noueritis pertinere dicta prohibitione non obstante And by reason of defectes in reparations of a Church money it selfe may lawfully be sued for in a court ecclesiastical as 6 Reg. pag. 48. 2. appeareth by another consultatiō in the Register And so is it also prouided by statute in this behalfe amongst other things viz. 7 Circumspectè agatis 13. Ed. 1. Prelates may punish for leauing Churchyards vnclosed or for that the Church is vncouered or not conuentently decked in which cases none other penance can be enioyned but pecuniarie CHAP. VIII Proofes in generall that sundry crimes and offences are punishable by ecclesiasticall Iurisdiction and namely idolatrie heresie periurie or laesio fidei and howe farre the last of these is there to be corrected also of disturbance of diuine seruice or not frequenting of it and neglect of the Sacraments LAstly doe followe the testimonies of the lawes of the Realme for proofe that many crimes also and offences are punishable by iurisdiction ecclesiasticall and first in generall then in particular for sundry of them The King writ thus to his Iudges 1 Statut. Circumspectè agatis 13. E. 1. vse your selues circumspectly in all matters concerning the Bishop of Norwich his Clergie not punishing them if they holde plea in court Christian of such things as be meerely spirituall that is to wit of penance enioyned for mortall sinne c. In hospitals 2 2. H. 5. ca 1. that be of any others foundation then the Kings it is enacted that Ordinaries shall enquire of the foundation erection and gouernance of them and of all other matters necessary in that behalfe and thereupon make thereof correction and reformation after the lawes of holy Church as to them belongeth In the statute of Citation it is permitted that a man may 3 23. H. 8. ca. 9. be cited out of the Dioeces where he dwelleth when some spirituall offence or cause is committed and done or omitted neglected or foreslowed to be done by some hauing spirituall iurisdiction In a statute of K. Edward the 6. 4 1. Ed. 6. cap. 2. Causes of correction be reckoned as ecclesiasticall which statute though it be repealed for the principall purport there of being touching Ordinaries seales and names not to be vsed any more in their citations and processes yet it bringeth sufficient euidence that sundry matters of correction be of ecclesiasticall iurisdiction And so Bracton testifieth that it was vsed and holden in his time for he saith In 5 Bracton lib. 5. cap. 2. causis spiritualibus vel spiritualitati annexis vt si propeccato vel transgressione fuerit poenitentia iniungenda iudex ecclesiasticus habet cognitionem quia non pertinet ad regem iniungere poenitentias nec ad iudicem Secularem The sundry consultations set downe in the Register do shewe that whē the proceeding is ad correctionem animae for some sinne not punishable in the Temporall Court the conisance is Ecclesiasticall One 1 Regist. 45. a. b. example shall suffice viz. Nolumus cognitionem ecclesiasticam in ijs quae ad forum ecclesiae maximè ad correctionem animae pertinent contra iustitiam impedire But to descend to more particulars and first concerning those which are contrary Pietati in Deum That idolatrie is punishable by Iurisdiction ecclesiasticall appeareth by the statute 2 5. Eliz. cap. 23. De excommunicato capiendo afore alleaged and touching Heresie
or errour in matter of Religion or doctrine besides that Statute others doe also shew how it is inquirable and punishable by Iurisdiction ecclesiasticall For both the Preamble and Statute of Henrie the fourth and the Statute of Henry the fift touching Heresies doe plainely testifie hereof In the former whereof is said 3 2. H. 4. ca. 15. that the Dioecesans of the Realme cannot by their Iurisdiction Spirituall without ayde of the Royall Maiestie sufficiently correct nor restreine the malice of Heretickes because they goe from Dioecesse to Dioecesse and willnot appeare before the Dioecesans but contemne the keyes of the Church and censures of the same c. And in the 4 2. H. 5. ca. 7. later that the conusance of Heresie errours and lollardies belongeth to Iudges of holy Church and not to secular Iudges And likewise by a later 5 25. H. 8. c. 14 Statute then those whereby it was prouided that euery person being presented or indicted of any Heresie or duely accused or detected thereof by two lawfull witnesses at the least to any Ordinaries c. might by them bee proceeded against c. and none otherwise Neither is it materiall though the said three statutes do stand repealed for they shew neuerthelesse touching Heresie what then was and now is still at the Common Lawe which offence to be still punishable at the Common Lawe doeth also more plainely appeare by the statute of Citations being stil in force For there it is prouided that the said statute notwithstanding 6 23. H. 8. c. 9. the Archbishop may cite and summon any person of his prouince for cause of Heresie if the immediate Ordinarie doe consent or doe not his duetie and that the prerogatiue of the Archbishop of Canterburie shall not be preiudiced by that Statute The like is testified of breach of an oathe and of periurie in an ecclesiasticall Court or matter For after that amongst diuers other matters in the statute of 7 Circumspectè agatis 13. Ed. 1. Circumspectè agatis breache of an othe is mentioned it is thus in the ende added In all cases afore rehearsed the Spiritual Iudge shall haue power to take knowledge notwithstanding the kings prohibition And by the aforesaide 1 5. Eliz. ca. 23. Statute De excommunicato capiendo among sundry other crimes and offences Periurie in the Ecclesiasticall Court is reckoned to be of Ecclesiasticall Iurisdiction And so is it by a 2 5. Eliz. cap. 9. prouiso in the statute against periurie made at the same time By bookes of the Common Lawe I finde two cases wherein breach of othe called laesio fidei in an othe voluntarily taken whether priuately or before an Ecclesiasticall Iudge as was in those dayes much vsed is to be determined in the Temporall and not in the Ecclesiasticall Court The one is such as fell out in the case of the vicar of Saltash who had made an Obligation and had bound it by an othe that he would not goe against it before the Popes collector in England who pretended though vniustly some Iurisdiction Ecclesiasticall in himselfe Against which othe when the Uicar was supposed to deale and was therefore conuented before the said Collector there went foorth a prohibition and no consultation could be obteined For said Hankeford a 3 M. 2. H. 4. 15. Concordat 24. H. 1. per Brooke praemunire 16. Doct. stud lib. 2 cap. 24. man shall not be sued before an Ordinarie for periurie but where the principall matter whereupon the periurie grew was a matter Spirituall or touching it and alledged this reason for else if the periurie should be found against him hee should be straight awarded there to performe the othe whereupon the periurie grewe and where of hee is attainted and so though it were to pay debts he should be there compelled to pay them and hereby Lay contracts should be determined there contrary to the Kings royaltie And againe the same man in the 4 T. 11. H. 4. fol. 241. secund vnam impress 88. vel 85. secund aliam same Kings dayes afterward reporteth that a man had sworne to make a feofment of his land and because hee did it not hee was vexed by the partie in the Court Christian as for the periurie and because such suite shall be as a compulsion to performe a thing touching land and inheritance it was adiudged in such maner as if he had sued for the principall in Court Christian. And the effect 5 P. 38. H. 6. 29. of both these cases is rehearsed with the like reason by Fortescue in the Eschequer Chamber and was expressely graunted by some and gainesaide by none Therefore 6 Fitzh tit proh 12. ex Regist. if a man and his wife doe aliene the right of his wife and the wife is sworne that shee will not sue the Cui in vita and yet after the death of her husband brings the Writte and the other sueth her in Court Christian for breache of her othe shee shall haue her prohibition Agreeable to which is that iudgement long agone that 1 M. 4. H. 3. referente Fitzh prohib 15. if a man sue another in Court Christian pro laesione fidei which othe arose vpon a temporall contract or cause a prohibition lieth And 2 Bracton lib. 5. cap. 2. Bracton that writ in that time saith thus In placito quod pertinet ad coronam dignitatem regis etsi fides fuerit apposita in contractu non propter hoc pertinebit cognitio super principali ad iudicium Ecclesiasticum Hereof he allegeth a reason in another place of the same booke 3 Idem lib. 5. cap. 9. Iurisdictionem regiam non mutat fidei interpositio sacramentum praestitum nec spontanea renuntiatio partium To which resolutions accordeth this booke case In an 4 M. 20. Ed. 4. fol. 10. attachment vpon a prohibition where the plaintife was sued in Court Christian pro laesione fidei in that hee had sworne to pay fifteene pounds and did not Brian held that when the faith is made touching a matter Spirituall then the breach there of shal be punished in a Court Spirituall as if one should sweare to pay me his tithes truely or a woman to marry with me but if the faith be made vpon a matter Temporall then the breache of faith shall not be punished there because they will not assoile him if he be conuict till some Temporall duetie be contented and payed A later Treatise of the Common Lawe made in King Henry 8. his time doth touche this 5 A Treatise that the B. of Rome had neuer Supremacie here by the Lawes of the Realme cap. 1. point thus viz. In most cases of periurie the King and his Courtes haue had the punishment and in some cases the Clergie in their Courtes haue had the punishment by the custome of the Realme onely viz. such as haue risen vpon Spirituall causes Another case where the Ecclesiastical Law shall
the Realme the Treatise of the Liberties of the Clergie a man defame or publish one for false an adulterer or vsurer he may be sued in court ecclesiasticall And another Treatise published also in king Henry the 8. time by a common Lawyer saieth thus 3 That the bishop of Rome c. cap. 3. printed by Berthelet In some cases of diffamation and slander the kings courts and in some cases the Clergie haue holden plea thereof Therefore I doe the more maruell the lawe being so plaine at the Note that is set 4 Nota in Reg. pag. 54. b. downe in the Register touching this matter viz. All the Iustices are against a Consultation in a case of diffamation which is spoken indistinctly and indefinitely and therefore more generally perhaps touching any diffamation what so euer then the Iustices meant or then by Statutes and lawe may be warranted It may be that a booke case of Henry the 4. gaue occasion of this mistaking being not throughly weied for at first sight it seemeth to sound as if no diffamation at all were of ecclesiasticall conisance And so 5 Tit. Consultation nu a. alibi euen Brooke in his Abridgement seemeth to take it But the trueth is by that case is onely meant that such diffamation as ariseth vpon a Temporall matter is not of ecclesiasticall conisance which is the first exception of the generall rule set downe in the Statute of Circumspectè agatis where is sayd that diffamation shal be tried in the Spirituall court And that the said case is to be restrained to such diffamation onely will appeare most plamlie to him that considereth the scope of 6 M. 2. H. 4. fol. 15. Hankefords argument The Vicar of Saltashe had giuen an othe before the Popes Collecter in confirmation of an obligation by him made The Deane of Windsor sued the Vicar before the Collecter prolaesione fidei the Vicar purchased a prohibition Hankeford to maintaine this prohibition argueth that the periurie couldnot bee sued in an ecclesiasticall court for that it arose vpon a temporall cause Adding for proofe of his saying that himselfe had a matter vpon the like reason ruled for him and against the Archbishop of Canterbury H. 14. Edw. 3. par attachment sur Prohibition c. de ceo que il suist en court Christian pur diffamation The matter then was not ruled against the Archbishop simply for suing diffamation there but of such a kinde of diffamation For else this would not haue fitted the purpose of Hankefords argument because hee hauing to prooue that laesio fidei arising vpon a Temporall cause might not bee sued in an ecclesiasticall court could not make any colour of that assertion by alleaging of a iudgement that no diffamation at all might bee prosecuted there for that is not the like reason And therefore as that laesio fidei arose on a Temporall cause so did the diffamation there spoken of for which a prohibition did lie without Consultation That diffamatorie words touching a temporall cause may not be sued in court ecclesiasticall we haue also a prohibition 1 Regist. fol. 42. b in the Register without any Consultation granted For whereas one gaue witnesse in an Inquisition made by the king about his exchange in Yorke the partie touched sued the witnesse for diffaming him in a court ecclesiasticall whereupon the witnesse brought a Prohibition by reason the matter was a Temporall cause By Statute likewise it is 2 Ed. 3. c. 11. enacted that a Prohibition shall lie if a man be sued in court ecclesiasticall for diffamation in that hee endited the other I finde also another cause why some diffamation may not be sued in a court Ecclesiasticall and that is when action therefore lieth at the Common lawe As 3 P. 18. Ed. 4. fol. 6. where a man brought Action of trespasse for goods taken away the defendant hereupon sued him in a spirituall Court for diffamation But Hussey the kings Atturney in behalfe of the Plaintife desired a Prohibition because the plea in Court Christian was mooued the suite hanging there and had it graunted Quod nota So if I be robbed and speake of him that robbed mee before others so that hee sueth mee in a spirituall court for diffamation there lieth a Prohibition because I may haue an Action at the Common lawe videlicet mine appeale of the robberie There be also in the booke of 1 Booke of Entries tit Prohibition Entries precedents of Prohibitions granted agaynst those that for diffamation prosecuted such in court ecclesiasticall as sued them in temporall courtes for maime and for forging of euidences So that wee may conclude this point that out of the cases excepted the rule of Circumspecte agatis and Articuli Cleri for diffamation to bee of ecclesiasticall conisance hath place euen by allowance of the common lawe There resteth yet one point belonging to this place fit to be cleared There is alleaged for other purposes by the Note-gatherer a little olde printed Treatise Concerning the power of the Clergie and lawes of the Realme In which the Statute of Circumspectè agatis both here and elsewhere by me alleaged is auouched to bee no Statute but a bare constitution The words 2 Of the power of the Clergie and lawes of the realme cap. 8. bee these Wee neuer sawe any proofe that Circumspectè agatis was a Statute or taken out of the kings answeres and there bee in the sayd treatise diuers things that bee directlie agaynst the lawes of the Realme as it is in this point That Prelates for fornication auouterie and such other may sometime assigne bodilie paine and sometime pecuniarie payne And the lawe is that Prelates shall neuer assigne pecuniarie payne for correction of sinne but onely at the desire of the partie And also it is recited in the sayd Treatise that if the Prelate of any Church or his Aduocate aske of the person a pension that the suite should bee in the Spirituall Courte and the lawe of the Realme is euen to the contrarie And we thinke that if it had bene a Statute that the lawe should neuer haue bene vsed therein so directlie agaynst the Statute as it hath bene vsed And in the nineteenth yeere of King Edward the third in a Writte of Annuitie brought in the Kings Court against the sayd Article of the sayd Treatise it is sayd that the sayd Treatise is no Statute but named so to bee by the Prelates And also the sayde Writte of Annuitie is iudged to bee maintenable in the Kings Courte and that is directlie agaynst the Treatise of Circumspectè agatis wherefore wee thinke it is no Statute The verie like wordes are also vsed I thinke all by one Author in 1 Ibid. cap. 8. another Treatise of constitutions Prouinciall and Legatine Nowe in that to prooue it no Statute he saieth There bee in it diuers things directly against the lawes of the realme seemeth to me a strange reason As
contradiction alwayes yeelded to be of ecclesiasticall conusance For being such matters as subiects haue a right vnto and yet no writ lying therefore as I take it at the Common law which 1 Stat. de Consultatione 24. Edw. 1. reason is the ground in statute for granting consultations and of leauing causes of that nature to the determination of an Ecclesiasticall court it will therefore follow that these also doe belong to iurisdiction ecclesiasticall But touching Clerkes wages called in the Prouinciall constitutions eleemosynae consuetae and in the Register conteined vnder the generall word of Largitiones charitatiuae I haue incidently spoken in this chapter afore There remaine yet some offences set out by me to be of Ecclesiasticall conusance which I finde not hitherto so auouched to be by any writer of the Common law yet are they so holden by the law Ecclesiasticall and by vsuall practice also without any prohibition or other impeachment The first 2 c. dura c. falsariorum de crimine falsi of them is forgerie in an ecclesiasticall mattter or the vsing and setting out of forged letters knowing them to be such as of letters testimonialles of orders taken of institution and such like Next is the burying in vsuall buriall for other Christians of 1 c. quicumque de haeret in 6. notorious Heretickes or of persons dying excommunicated and without repentance thereof Thirdly willing 2 c. si concubinae de sent excom and familiar cōuersing with persons whom they knowe to be excommunicated matori excommunicatione Fourthly 3 Bald. in ca. cōuentic de pace iureiurando firmanda frequenters of conuenticles which doth also come vnder schisme Lastly vnlawfull 4 Extrau detestandae de sepultura digging vp of corpses buried either vpon spite or in any other sinister respect whatsoeuer I haue hitherto stoode vpon matters wherein Ordinaries by Law may hold plea to shew thereby that they may cite in other causes then Testamentarie or Matrimoniall For deale in them or handle them they could not vnlesse the party which is pretended to offer the wrong or to be the offendour might be conuented which is by citation Therefore besides the authorities here and there in the former discourse falling in by other occasions which might sufficiently prooue that they may cite and compell men to come before them I will now briefly vse some further direct proofe to conuince that in other causes then those two men may be cited before Iudges Ecclesiasticall It appeareth by Articuli Cleri that for any matter Ecclesiasticall indefinitely men might be cited For vpon doubt mooued whether the Kings tenants were subiect thereto in such sort as others are it is decreed that 5 Artic. Cleri 9. Ed. 2. ca. 12. such as holde of the Kings tenure may bee cited before their Ordinaries and may bee excommunicate for their manifest contumacie and after 40. dayes may bee attached by the Kings Writte as others The 6 23. H. 8. c. 9. preamble of another statute proueth Citations euen of men wiues seruants and other the kings subiects for diffamations and tithes so they be vpon iust matter and in due order to be lawfull The body of that statute 7 Ibidem prouideth that no Citation be made out of the Dioecesse c. where the partie dwelleth but where some Spirituall Offence or Cause is committed or done c. so that à contrario sensu in any other offence or cause Spiritual as very many are afore proued to be any subiect may be cited within his or her Dioecesse and in those also there excepted may be cited out of the Dioecesse Likewise 8 Ibidem for Heresie the Archbishop of Canterbury may cite any of his Prouince if the immediate Ordinarie doe consent or do not his dutie In a statute 9 32. H. 8. cap. 7. made for tythes any man withholding them shall be conuented according to the Ecclesiasticall Lawes And there is also mentioned Compulsorie Processe and censures of the Church In a statute 1 1. Ed. 6. ca. 2. of King Edward the sixt though for the body thereof it be repealed yet thereby is testified that summons and citations be Processe Ecclesiasticall in all suites and causes of instance betwixt party and party and in all causes of correction Therefore seeing there is no colour that onely Ecclesiasticall persons shall fall out to be deteiners of such dueties Ecclesiasticall or that they onely will proue offenders in the crimes afore recited neither can all the Kings tenants nor yet men wiues seruants and other subiects be entended for the most part to be other then Lay persons we may safely conclude that not only in causes Testamentarie or Matrimoniall but in very many other afore noted any subiect whosoeuer may be cited before his Ordinarie or other competent Iudge Quoderat probandum as being the very contradictorie of the opinion that we are in handling CHAP. XI That Lay men may be cited and vrged to take othes in other causes then Testamentary or Matrimoniall THe thirde opinion nowe followeth which is that by the Lawes of the Realme no Layman ought to be summoned or cited to make or take as I thinke is meant an othe in any other cause then Testamentary or Matrimoniall This differeth from the former in two points The first is in the partie to be cited For the second opinion was that none whosoeuer including both Ecclesiasticall and Lay where as this is onely that no Lay man may be cited c. The second difference is in the end of the citation For here is said a lay man may not be cited to take an oth in any other cause thereby leauing as it might seeme the Ordinary at large to vrge persons ecclesiastical to take an othe in other causes also But all comes to one ende For if neither Lay nor Ecclesiasticall as the second opinion holdeth may be cited in any other cause then cannot Ecclesiasticall men be cited in any other cause to take an othe That which cannot be done at all cannot be done for any ende non entis nullae sunt qualitates so that both these runne to one point sauing that hereby is affirmed a citation may not be made to the intent a Lay man shall take an othe sauing in those two cases Now if this citing be meant of the partie defendant then doth it not impugne any proceeding ecclesiasticall in vse for the partie conuented is not cited ad subeundum iuramentum but ad respondendum tali in causa decimarum c. faciendum vlteriùs quod iuris fuerit rationis If it be meant of witnesses neither are they cited against their will not so much as in Testamentarie or Matrimoniall causes or any other to appeare till faith be made by the partie or by some other for him that they take them to be necessary witnesses for to testifie in that cause and that being required and their reasonable charges offered them
directly moued for the crime and not by way of exception or barre onely witnesses are to be compelled sauing that by later Canons Clerkes were not to be compelled to testifie in causes of blood But if the question be touching a crime by way of exception then either there may ensue thereupon some effect of punishment as vpon excepting a man to be criminous who then is to be preferred to a dignitie to a benefice or vnto orders in which case any witnesse may be compelled to giue testimonie or else no penaltie can thereupon follow as when the exception is taken onely to repell a man from testimonie or accusation and in this case witnesses are not compellable except the partie who excepteth be like to be grieuously thereby preiudiced if his witnesses cannot be gotten to depose There is nothing more conuenient then that euery court should vse his peculiar course of proceeding by that law wherin they deale prescribed And therefore 1 Anton. in c. quod clericis de foro competenti lay mens matters in a Court ecclesiasticall are to be handled according to the maner of proceeding by that law required euen as 2 Bartol in l. 3. § fin ff de testibus clerkes shall and ought to be dealt with in temporall or ciuill courts after the maners and orders of those courts Seeing then compelling of witnesses to testifie is not contrariant repugnant nor yet diuerse from the Common law nor by it forbidden but allowed vnto Ecclesiasticall courts according to the course of those lawes which doe require it as is shewed and no reason or equity leading to admit it rather in those two causes then in others of the same conisance therefore may any witnesses whatsoeuer be vrged to take oath and depose in Courts ecclesiasticall and in other matters ecclesiasticall then either testamentarie or matrimoniall But to descend yet to more particulars the Kings tenants may 3 Artic. Cleri 9. Ed. 2 cap. 12. be cited before their Ordinaries as others Therefore both they and others though Lay persons may be cited in all causes of that iurisdiction neither is it there distinguished whether they come in as witnesses or as parties Also they may 4 Ibidem as others be excommunicated for their manifest contumacie This contumacie after appearance groweth onely vpon peremptorie refusall to performe some decree or commandement of the Iudge as in refusing to be sworne or to be examined being sworne Seeing then for manifest contumacie the Kings tenants or others may be excommunicated and this is indefinitely set downe it will follow that as in any other not performance of the decrees of the Iudge according to the ecclesiasticall lawes so in refusall to be sworne whether he be partie principall or witnes there is manifest contumacie Vbi lex non distinguit nec nos distinguere debemus Particularly in matter of tithes being neither a cause Testamentarie nor Matrimoniall the 1 27. H. 8. contemners of the processe lawes and decrees of the Ecclesiasticall courts of this Realme are by statute condemned but an vrging to answer or testifie vpon oath is a decree of an Ecclesiasticall Court ergo may not be contemned The Ordinarie 2 Ibidem in a suite of tithes for any contempt contumacie disobedience or other misdemeanours vpon complaint may haue the partie committed till he shall be bound to giue due obedience to the processe c. decrees and sentences of the Ecclesiasticall court of the Roalme but requiring a parties or a witnesses oath is such a decree Therefore c. Likewise by another statute 3 32. H. 8. cap. 7. the Ordinarie may conuent for withholding tithes according to the lawes Ecclesiasticall therefore he may conuent and cite a man Lay or other if he be supposed to be a withholder to answere vpon his oath For so is the Ecclesiasticall law Further by that statute the 4 Ibidem Ordinarie may proceed to hearing and determination c. according to the course and processe of the ecclesiasticall lawes but the processe and course of hearing by that law is by the parties personall answere vpon oath if it be required and by compulsories of witnesses to depose by oath as is afore touched Therefore c. The statute of 5 2. 3. Edw. 6. cap. 13. king Edward touching tithes prouideth that both they and the costs charges and expenses in the suite shall be recouered before the Ecclesiasticall Iudge according to the kings Ecclesiasticall lawes but for recouery of them those lawes require in cases aforesaid both oath of partie and of witnesses ergo c. By that statute is established that the 6 Ibidem Ordinarie euen for personall tithes may call the partie afore him and by his discretion examine him by all lawfull and reasonable meanes other then the parties owne corporall oath concerning the true payment of such personall tithes Ergo a corporall oath is in other ecclesiasticall causes a lawfull and reasonable means for exceptions are alwayes of the nature of the rule and should be within the rule if they were not excepted and therefore also in all other tithes as prediall and mixt it is a lawfull and reasonable meanes to put the partie vnto his oath quia exceptio firmat regulam in casibus non exceptis The statute for Vniformity of Common 1 1. Elâ—…z cap. 2. ad finem prayer authoriseth ecclesiasticall Iudges to enquire to take accusations and informations and to punish the breaches of that act c. in like forme as before had bene vsed in like cases by the Queenes Ecclesiasticall lawes but in like cases by those lawes oathes both of parties witnesses haue bene vsually taken Therefore c. One only instance destroyes a generall assertion therefore if there were but any one instance to the contrary an oath by law may be vrged of some lay man in some other cause then testamentary or matrimoniall which being true and the very contradictory of the opinion that is in issue vpon this point betweene vs it must needs follow that the opinion is vntrue and therefore not grounded vpon law Quod probandum nobis proponebatur CHAP. XII The grounds of the two next former opinions examined and confuted THe ground of these two opinions last handled for any thing that I could euer learne doeth only rest vpon a precedent of a writ of prohibition and of attachment thereupon In treating whereof for that I shall be forced to gainsay something that is deliuered by graue learned and wise parsonages I must first protest before God in sinceritic of heart that I do it not calumniandi sed veritatis studio whereof I am something resolutely persuaded in this behalfe I do reuerence and esteeme them that are contrary persuaded being men of great learning in their profession neither contemning nor condemning any so much as my selfe as being most priuie to mine owne wants and therefore I trust something taught to measure my selfe by mine
writ to the shirifs of London signifiyng that no Clerke though he forfeit his recognizance of statute merchant shal be attached or imprisoned by his body except there bee some cause why hee should not enioy the priuiledge of a Clerke Besides it is no new or strange thing to haue some forme of a writ which is set down in the Register to be vpon better aduise disallowed For I haue credibly heard that it was not long since adiudged that in an action for trespasse done in a warren of Conies a mā might not plead that they were cuniculi sui albeit the Register in that behalfe 1 Reg. fol 102. tit de transgressione frameth the writ so And in the selfe same title whence this forme of prohibition is taken a clause in a prohibition was 2 Reg. fol. 37. reiected by the court For it is said in the margēt Curia noluit concedere istam clausulam in prohibitione but if it were law assured the Iudges would not haue reiected it Fitzherbert who in his booke 3 No. na br fol. 37. G. of Nature of writs was the first that sucked this conceit thence in the selfe same booke touching this rule set downe in the Register viz. notandum est quòd quando rex praesentat vt in iure coronae tunc incurrit ei tempus saieth thus now this rule is not holden for lawe But it will bee said that Fitzherbert himselfe and sundry that follow him since doe hold this point we speake of for lawe This no doubt carieth a great presumption with it that worthily for the worth of the learning iudgements of such men Yet I wil shew that his saying from whom they all since do take it is none vndoubted rule of lawe therefore theirs neither that do gather from him I protest before God I wil not seeke after obiections against his booke but take only such two in stead of mo which I had in my mind because they do touch ecclesiasticall matters He saieth that 1 Fitzh ibid. fol. 269. D. at the Common law an heretike ere he can be condemned must be conuicted of heresie before the Archbishop the whole Clergie of the prouince after abiured thereupon after that of fresh conuicted condemned by the clergie of that prouince this must be in their general councel of conuocation holdeth there that at the Common law a bishop in his dioecesse might not condemne an heretike vntill 2. H. 4. 2 2. H. 4. cap. 15. did giue him authoritie that then he might not be committed to the secular power to be burnt vntil he had once abiured was againe relapsed into that or some other heresie But neither of these points be law so I haue heard the two chiefe Iustices the L. chief Baron some other Iudges the Queens learned councel resolue in a speciall consultation holden about the matter of heresie For albeit the Conuocation may in deed condemn an heretike yet euery B. at the Common law before any statute might at this day may also in his own dioecesse so condemn as the preamble of that very statute makes manifest so by thē all was it then holden for lawe notwithstanding Fitzh opinion there which was fully by thē considered of And albeit it may seeme needlesse yet for further strengthening of these reuerend mens opinions there is a 3 10. H. 7. fol. 17. booke in the very point For it is said that for heresie or any point against the faith the BB. had none other power to bring thē in but to make processe against them by citations vntill the Statute of Heresie 2. H. 4. ergo afore that statute they had power to proceed against heretikes in Ordinarie course of the lawe ecclesiasticall Which assertion the very Note-gatherer also maketh in his title of the lawes of England yet to another purpose howsoeuer in the maine point y t we now treat of he sticke fast to Fitzherbert Likewise 4 Fitzh no. na br fol. 30. F. he saith it appeareth that before the statute made pro clero in the 18. of king Edw. 3. cap. 7. the right of tithes were determinable in the Temporall court of the king and that the lawe was altered at that time herein by that statute Whereas in very trueth there appeareth no such matter other then a grieuance offered in this behalfe to the libertie of the Church which then was determined that it should afterward cease I know that Gooddall writing of the liberties of the Clergie by the lawes of the Realme concurreth in this point with Fitzherbert for thus he writeth It seemeth that before the Statute the right of tithes were determinable in the Temporall courte but that statute hath altered the law So that it may be coniectured the one of them borowed it of the other But this whole doubt whether causes of tithes before that statute of Edw. 3. were determinable in an ecclesiasticall court or no is resolued by a Treatise nipping in trueth wholie at the Clergie and lawes ecclesiasticall and so indifferent an Vmpier as that the Note-gatherer alleageth him for his purposes therefore in this case not to be refused by them who produce him for their witnesse For that 1 Of the power of the Clergie and lawes of the realme cap. 15. Treatise writeth thus viz. Long after that the kings courts of his Bench commō Pleas also all inferior courts were put out of iurisdiction for tithes yet neuerthelesse Writs of Scire facias were commonly sued in the Chancerie for tithes and the defendants were thereupon put to answere wherefore at the petition of the clergie and in consideration of a disme that the clergie grāted to the king it was enacted 18. E. 3. ca. vlt. that such Writs of Scire facias thenceforth should not be granted for tithes And a litle afore 2 Ibidem thus viz. That suites for tithes shal be taken in the Spirituall court is only groūded vpon a fauour that the kings of this realme the whole realme haue in times past borne to the clergie And 3 Ibidem againe in this sort We thinke that the kings courts be put out of iurisdictiō for tithes by a custome of the realme not by the immediate power of the lawe of God Therfore by this mans opinion it is the common law or custome of the land and not that statute which made tithes of conisance ecclesiasticall And in very trueth that tithes were demandable in a court ecclesiastical before this may appeare by statutes afore that time by reports after testifying that the conusance of right of tithes at the Common law is incident to iurisdiction ecclesiastical as in the peculiar 4 Ca. 4 5 6. huius Partis treatise thereof is afore shewed Lastly to shut vp this first point a precedent of a prohibition of all other Writs that can be deuised may with least reason bee said
very Temporal causes themselues whereupon such faith or othe was confirmatorie If saith a Constitution 1 CoÌ„stit aeternae sanctio de poenisin Concilio apud Lambhith sub Bonifacio Anno 1260. tempore Henrici 3. Prouinciall of Canterbury perhaps our Lord the King in his Attachments prohibitions summons shall make mention not of tithes but of right of Patronage not of breach of faith or periurie but of chattels not of Sacrilege or disturbance of liberties Ecclesiasticall but of trespasses of his subiects the correction of which he affirmeth doth belong to him then let the aforesaid Prelats make known vnto him that they neither take conisance nor minde to doe touching Patronage chattels or other things belonging to his Courts but of tithes sinnes and other causes meere Spiritual belonging to their Office and Iurisdiction Whereby we first gather that the Common Law herein was not then resolutely agreed vpon in that they conceiued this allegation touching faith broken and periury would satisfie the King and his Courts And secondly that the Kings Writs of prohibition and Attachement in this behalfe were then awarded but for faith and othes made concerning goods and chattels because by that pretence the conisance of chattels was drawen into Ecclesiasticall Courtes I do finde in an old written parchment booke of statutes reaching downe but to H. 5. death many matters of marke conteined amongs the statutes As among others there be regiae consuetudines apud Claringdon promulgatae which as is there rehearsed were by K. Henry the second propounded in Parliament vnto Thomas Becket then Archbishop of Canterbury long before that Prouinciall constitution Most of which he did condemne by his censure as preiudiciall to the liberties of the Church And this is said there to haue bene the originall cause first of his banishment and afteâ— of his death But some of those customes Becket did tolerate whereof this is one seruing to our present purpose viz. Placita de debitis quae fide interposita debentur vel absque interpositione fidei sint in curia regis Hoc tolerauit At the ende of that Treatise it is saide that foure yeeres after Beckets death viz. 1174 of Christ the King repenting himselfe did together with the Prelates and greatmen of his kingdome abrogate and condemne those euill and vniust customes appointing onely those that were good to be thencefoorth obserued Yet saith he some of those that were so abrogated by the king and condemned by the Church are still obserued in the kingdome If this be with the kings knowledge and allowance let the King looke to it for God knoweth it The chiefe cause why I note it is this that it was euen then thought a Custome of the Realme and by Becket himselfe allowable and tolerable that Pleas of debts though faith or othe were giuen for their payment belonged to the Kings temporall Courtes Next is that hence may be gathered how the Recognitions and othes forbidden to be made in Courts Ecclesiasticall by the Writs which we here dispute of are to be vnderstood of such of them onely as concerne debts or chattels sauing that in causes Testamentary and Matrimoniall onely they may be there made and acknowledged albeit they concerne debts and chattels It may also appeare euidently that the Recognitions forbidden to be made in Courts Ecclesiasticall in any cause sauing of Testament or Matrimony ought to be vnderstoode of Recognitions and othes about debts and chattels For lightly in euery place where these two matters of Testament and matrimony are spoken of there also debts and chattels are spoken of to this effect that in these two cases Pleas of debts and chattels may be handled in Courts Ecclesiasticall but in none other Bracton who wrote before this Writte was framed saith 1 Bracton lib. 5. cap. 2. thus Si Clericus petat versus Clericum vel Laicum debitum quod non sit de Testamento vel Matrimonio sequi debet forum Laicale And 1 Ibidem againe a litle after Non pertinet ad regem cognoscere de catallis quae sunt de Testamento vel Matrimonio Likewise in a precedent of a prohibition he 2 Ibidem lib. 5. cap. 3. cap. 10. 13. vseth this addition Nec teneatis placitum in curia Christianitatis de catallis vel debitis quae non sunt ex Testamento vel Matrimonio In the 3 Prohib Consul nu 3. 7. booke of Entrees the like is often found as Attachiatus fuit ad respondendum tam Domino regiquà m N. de placito quare secutus est placitum versus eum in curiae Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And in a 4 Consultat 2. copie of Consultation there callidè machinans impedire suggerénsque in Cancellaria nostra ipsum tractum fuisse in placitum coram vobis in curia Christianitatis de catallâ—…s debitis quae non erant de Testamento vel Matrimonio c. Yea and in 5 Register Ibidem tit Prohibitiones the Register it is set downe more plaine a great deale in a copie at large of a Prohibition vpon the same point and with the same causes excepted being the next following to that which wee principally doe here treate of For the very worde of Recognitio before an Ordinary is there vsed and applied to a debt or contract touching goods and chattels Cum recognitiones debitorum quae non sunt de Testamento vel Matrimonio ad nos coronam dignitatem nostram non ad alios pertineant in regno nostro executiones earundem per nos ministros nostros non per alios fieri debeant ac iam ex querela I. acceperimus quod vos ipsum I. ad viginte solidos quos coram vobis nuper in curia Christianitatis recognouit se debere A. eidem A. soluendos intra certum tempus iam praeteritum monuistis in ipsum I. pro eo quod praedictos viginti solidos intra tempus praedictum ad monitionem vestram soluere recusauit quanquam huiusmodi recognitio Testamentum vel Matrimonium non tangat c. excommunicationis sententiam fulminastis c. vobis prohibemus c. And the very like words to the same effect and with like exceptions are there vsed in the fiue precedents of Prohibitions next in order following And in the olde written Register afore spoken of there be many copies of Prohibitions set downe in all which whensoeuer that exception of causes Testamentary and Matrimonial is mentioned that clause de catallis debitis quae non sunt de testam c commeth in with all In the printed Register among the Writs Iudicial we haue these 1 Regist. in Br. Iudic. fol. 38. a. words Quare secuti sunt placitum in curia Christianitatis de catallis debitis quae non sunt de Testamento vel Matrimonio And againe 2 Ibid. fol. 39. a.
ecclesiasticall whatsoeuer but either testamentarte or matrimoniall are voyd of all ground of law nay are contrary to Statute lawe to Common lawe to practise for time immemoriall and also vnto reason in some sort CHAP. XIII That iudgement of heresie still remaineth at the Common law in Iudges ecclesiasticall and that the Prouiso touching heresie in the Statute 1. Eliz. cap. 1. is onely spoken of ecclesiastical Commissioners thereby authorized THe two other opinions remaining that respect matters handled by Ecclesiasticall iurisdiction and come next to be treated of for the affinitie of them and because they both depend vpon one and the selfe same grounds I purpose brieflie to handle together viz. whether the iudgement of Heresie nowe lieth rather in the Common lawe then Ecclesiasticall and whether nothing may at this day be adiudged heresie but according to the statute primo of her Maiesties 1 1. Eliz. cap. 1. reigne For in the true vnderstanding of that statute the decision of these two opinions will wholie rest It seemeth by the latter the author of them thinketh that before the statute 2. H. 4. Ordinaries at the Common law might not by their iurisdiction Ecclesiastical proceed to the condemnation of an heretike and therefore seeing all former statutes made against heretikes stand now repealed he gathereth that no heretike may be delt with but according to the said statute made in the first yeere of her Maiesties reigne This opinion it may be he gathered out 2 Fitzh in noua nat br fol. 269. D of Fitzherbert his Noua natura breuium yet I thinke rather it was his owne conceit both because he doeth not alleage Fitzherbert for it and for that Fitzh leaueth euen at the Common lawe authoritie in the whole Conuocation of a Prouince to condemne an heretike albeit he there also hold that at the Common lawe before such statute a Bishop in his dioecesse could not so condemne But I haue shewed in the twelfth chapter hereof by very great and good opinion the law in this point to be mistaken For proofe that it is so I also touched it something in the 8. chapter For in the Preamble of the statute it is thus conteined The 3 2. H. 4. cap. 15. dioecessans of the realme then complained that they could not by their iurisdiction spirituall without aide of the roiall Maiestie what not at all Nay but not sufficiently correct nor restraine the malice of heretikes Why because they wanted authoritie at all to deale with them No but because the heretikes goe from dioecesse to dioecesse and will not appeare before the dioecessans but contemne the keies of the Church and censures of the same So that had it not bene for their fugitiuenesse their refusing to appeare and contempt of the keies the ordinarie dioecessans had Iurisdiction spiritual to correct and restraine them In which respect and for better assistance of their former iurisdiction it was then first prouided that heretikes should be attached and imprisoned Other authorities out of Statutes I there in the eight Chapter alleaged also to this purpose The wordes of the Statute made primo of her 4 1. Eliz. cap. 1. Maiestie from which this second opinion is gathered doe make the matter cleere that nothing thereby is meant but that Commissioners for causes ecclesiasticall according to that Act termed by the common people the high Commission shal not haue authoritie to adiudge any matter or cause to be heresie but onely such as hath bene so adiudged by the authoritie of the Canonicall Scriptures or by the first foure generall Councels or by any other generall Councell wherein the same was declared Heresie by the expresse and playne wordes of the Canonicall Scriptures So that the iurisdiction of Ordinaries and of the Conuocation still remaineth as it did afore at the Common lawe But I muse greatly what colour or pretence he could haue to gather the first of these two opinions out of the aforesayd words for doeth he or can he thinke that the ordering determining or adiudging of a matter to be Heresie by the Commissioners ecclesiasticall there spoken of is a iudgement at or according to the course of the Common lawe as the Common law is taken in vsuall signification Or shall it be imagined that wheresoeuer any matter by occasion comes in to bee mentioned in a statute as for 1 13. Eliz. c. 12. example naming matters of faith mentioning errors in doctrine or the doctrine of the Sacraments that the determination of all such points and what and how many speciall matters are conteined vnder those generall heads whatsoeuer shall by reason of such incident mentioning of them in a statute be put ouer to the iudgement of a Iurie or to the determination of Temporall Iudges What other may conceiue I know not for my part I must take it till I be better informed to be so simple a conceit as is worthie rather to be dismissed with laughter then to be confuted with further reason CHAP. XIIII That by the Statute her Maiestie may commit authoritie and naturall borne subiects may take and vse in Ecclesiasticall causes attachments imprisonments and fines THe next opinion that comes to be treated on is Whether the Queens Maiestie by her letters patents vnder the great seale of England may authorise the vse of any other processe in matters ecclesiasticall then by citation as by letters missiue attachment or such like whereunto I adde the other two of the same author depending vpō the same string whether her highnesse may so authorise the vse in matters ecclesiastical of any other coërtion or punishmēt as by fine or imprisonment These opinions if they be not well grounded vpon lawe seeme to me to touch her Maiesties prerogatiue roiall and supreme gouernment that was yeelded vnto her highnesse by statute very deeplie whosoeuer be Author of them And if this authoritie that is hereby impugned be in trueth a preheminence vnited and annexed to the Imperiallcrowne of this realme by Parliament and if he be a man of any qualitie so that hee hath taken the oath of Obedience let him vse good aduisement how it may stand with such his oath and allegeance They are pretended both by the Treatiser and the Note-gatherer to be grounded vpon 1 Magna charta cap. 39. these words of Magna charta viz. No free man shall be taken or imprisoned or be disseised of his free hold or liberties or free customes or be outlawed or exiled or any otherwise destroyed nor we shal not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land Whereupon the Note-gatherer also doeth collect that none may be attached but such as be first endited But the end why this law was made and the time when it was made are needfull to be considered The ende was this that the Kings of this realme should not chalenge an infinite and an absolute power to themselues as some kings elsewhere did
yet do without iudgement lawful proceeding to take away any mans libertie life countrey goods or lands And it was at such time when the kings themselues thought that Iurisdiction ecclesiasticall was not in right no more then it was in fact at that time belonging to the crowne therefore in that it is here sayd Wee will not passe vpon him nor condemne him but by lawfull iudgement of his peeres or by the lawe of the land it is manifest that the wordes haue no relation to Iurisdiction ecclesiasticall for that which was done by that Iurisdiction was not at that time taken to be done by the King or by his authoritie and the lawes that ecclesiasticall Iudges practised were not then holden to be the Lawes of the Land or the Kings lawes as since the lawfull restitution of the ancient right in that behalfe to the crowne they be often called The 2 1. Eliz. cap. 2. pass alibi Kings or the Queenes ecclesiasticall lawes In the Preamble 1 25. H. 8. ca. 21. of a statute made in king Henrie the eights time it is to this effect said that the people of this Realme haue bound themselues by long vse and custome to the obseruance of certeine mans lawes besides those which were ordeined in this Realme not as to the obseruance of the lawes of any forren Prince Potentate or Prelate but as to the accustomed ancient lawes of this Realme originally established as lawes of the same by the sufferance of Kings and by consent and custome of the people and none otherwise And a litle after mention is there made of such lawes humane induced into this Realme by the said sufferance consents and custome This is brought to prooue that the Parliament or such as it shall authorize may dispense with those and with all other humane lawes of this Realme for so they be termed Whereupon in the body of the statute ensued that authoritie which the Archbishops of Canturburie haue of granting faculties c. And therefore the humane lawes spoken of in the Preamble are those Canon lawes which by such sufferance vse and custome are now as the accustomed and ancient lawes of this Realme originally established as lawes of the same howbeit by the meanes aforesaid but induced into the Realme and not here at first made nor ordeined There is 2 5. Eliz. cap. 25. another statute also made in her Maiesties time in the Preamble whereof they be called the Ecclesiasticall lawes of this Realme So that when whole Parliaments do aduow them to be lawes of the Realme yea that for proofe of another point perhaps doutfull we may then well make but light account of all the Treatisers exclamations to the contrary who calleth thē strange lawes and forren lawes c so long as we meane but of such Canons as haue bene of long time vsed and be 3 25. H. 8. ca. 19. not to the dammage or hurt of the Queenes Maiesties prerogatiue royall nor contrariant or repugnant to the lawes statutes and customes of the Realme Furthermore it is well and notoriously knowen that proceedings and condemnations Ecclesiasticall in ordinarie Courts were neuer made by the iudgement of a mans peeres viz. by a Iurie and therefore those words rehearsed can not be so farre extended as to include that iurisdiction Yet as institution vnto a benefice both before after Magna charta belonged alwayes to ecclesiasticall persons and iurisdiction so did also the destitution or depriuation from a benefice by the Common law in which respect Bishops that claime not the patronage do alwayes plead to a Quare impedit thus Nihil clamat praeter institutionem destitutionem Clericorum vt Ordinarius in dictarectoria de A. c. whereby may appeare that a man might by law be put out of his benefice being his freeholde otherwise then according to the forme of that statute And this by the way may also shew how vnsound a collection the Note-gatherer maketh out of those words of Magna Charta where because a benefice is a freeholde he would inferre that a Clerke may not be depriued of his benefice but by a iudgement at the Common law I haue also proued in the chapter next afore and in the eight and the twelft chapters that an Ordinarie in his dioecesse euen at the Common law might condemne a man for heresie whereupon after committing to the secular power such an heretike was put to death by burning but this was not done by any iudgement of his peeres and therfore those words of Magna Charta are no way to be construed of any iurisdiction ecclesiasticall Furthermore besides iudgement of a mans peeres there is added or by the law of the land which permitteth other triall then by Peeres as by battell c. Now seeing all iurisdiction and authoritie in this Realme aswell ecclesiasticall as temporall was euer in right but now is also iustly acknowledged and is infact vnited and incorporated vnto the crowne of this Realme therefore inquire whether vpon the premises it may not be probably said albeit not according to the vsuall speech that a iudgement duely giuen by the iurisdiction ecclesiasticall is giuen by the law of the land But this cloud or rather mist which they would cast is also plainely dispersed by the first chapter in Magna Charta for thereby is made a flat distinction and seuerance betwixt the grant there made to God with confirmation of the Church of Englands freedome rights and liberties for euermore from those grants that are after made to other the freemen of the whole Realme in the rest of that charter so that the iurisdiction of the Church can not be intended to be meant in any of all the rest except it be particularly expressed Yet if those words were admitted to be meant and stretched foorth vnto that iurisdiction also will not statutes made by the like authoritie of Parliament sufficiently qualifie or impeach thē Vnto this head is that obiection of the Note-gatherer to be referred where he allegeth out of the diary acts of the Clerke of the Parliament I know not how truly 1 4. H. 4. art 29. that the Commons exhibited a petition that Lollards arrested by the statute of 2. H. 4. should be bailed and that none should arrest but the shiriffe or other lawfull officers Buthe doth fully answere himselfe therein for the kings answere was saith he that Leroys ' aduisera which is the forme of dissent that the Kings and souereigne Queenes of this Realme do vse when they dissent or deny any statute or petition in Parliament offered vnto them to be confirmed for a law Whereby we see that arrests attaching for crimesmight be made without enditement precedent and by others then the shiriffe and also that albeit Magna Charta had bene to the contrary yet an act of Parliament comming after might change that law Wherofifneed were I could shew sundry other examples notwithstanding that which the
pursuite of the writ De excommunicato capiendo being ouer-trouble some and full of vnnecessary circumstances But hereunto he doth answer that we forget the olde and true saying Compendiaria res improbitas virtus longa Now if he will haue this to be a good answere then must he holde the shorter way alwayes to be the woorse and the longer the better And where is then the rule of Logike Frustrà fit per plura quod fieri potest per pauciora and how is he so suddenly fallen out with himselfe that else-where condemneth Courts ecclesiasticall for lingering consistories I perceiue neither long nor short will please him long together But his reason is a fallacie of the consequent For though it be but a short cut vnto wickednesse and the way vnto vertue be long and hard yet is not all length commendable nor yet are all short courses condemnable The latter opinion of the two here also to be handled doth crosse thwart other of their owne opinions for the Ciuill law saith Frustrà fertur sententia nisi parata sit executio A decree or iudgement is of no effect where execution of such sentence can not be had The Iudges ecclesiasticall haue no compulsorie meanes to put their iudgements vnto finall execution sauing excommunication the writ De excommunicato capiendo after forty dayes obstinacie Those of the impugners of ecclesiasticall iurisdiction vnder pretence of the lawes of the Realme that be straitest laced doe yeeld causes testamentarie and matrimoniall to be of ecclesiasticall conusance and I hope sundry others be prooued no lesse to be Now how shall any of those be euer effectually proceeded in seeing they are none of the tenne crimes reckoned in that statute if for not performance of that which is decreed the wilfull partie shall neuer be attached for persisting vnder excommunication It appeareth also plainly by the Preamble that the sayd statute was enacted for better assistance vnto iurisdiction ecclesiasticall by more due execution of the writ De excommunicato capiendo especially against offenders in crimes of ecclesiasticall conusance The Ordinaries afore this who had to deale in any matter ecclesiasticall and all subiects that sued any other there had this interest of hauing a contemptuous person being excommunicated and so remaining aboue fortie dayes to be attached and imprisoned by vertue of that writ vpon what originall cause ecclesiasticall soeuer such contempt grew Now if that statute prouiding but a straiter course for execution of that writ in tenne crimes onely should with all take away the force and vse of it as it stood afore at the Common law not onely in sundrie other crimes of ecclesiasticall conusance still there punishable but also in all causes Testamentarie Matrimoniall of tithes and in all other rights ecclesiasticall in that Court onely still demandable then should it worke a cleane contrary effect to the very true drift and scope aimed at and to the meaning it selfe of the Law-makers But this is very vnreasonable and absurd to imagine for quae in fauorem sunt introducta non debent in odium retorqueri and quae ad vnum effectnm parantur non debent contrarium operari effectum It is true that in the beginning of the body of that Statute the words be generall in this sort viz. Euery Writ of excommunicato capiendo that shall be granted out of the high court of Chancerie against any person or persons c. Whereupon some very learned in those lawes haue thought that the maner of granting it returning and deliuering it which be there especified doeth reach vnto all and euery writ de excommunicato capiendo but yet that the new penalties there prouided for such person excommunicate as shall not yeeld his bodie are to be restrained vnto those onely who by Significauit are certified to haue bene excommunicated vpon some cause or contempt arising vpon some originall matter of some of those ten crimes there especified This seemeth to carie great reason with it for in trueth that generalitie there not withstanding not only in the Preamble but in diuers partes of the body of that statute we find wordes taxatiue and of restraint carying the chiefe purport of that Act vnto such writs as be grounded vpon some of those ten crimes For the Preamble onely speaketh of persons offending in many great crimes and offences of continuing in their sinnefull and criminous life and of such offenders And the beginning of the bodie of the Statute is for redresse thereof be it c. and afterward this word of Limitation is often vsed viz. Such writ of excommunicato capiendo such persons excommunicate and such Significauit And therefore that statute nor any Prouiso in it cānot be entended generally to take away the writ de excommunicato capiendo in all causes sauing in those ten crimes as by this opinion is enforced But the clause thereof Sauing and reseruing to all persons hauing authoritie to certifie excommunicate persons doth put all this matter out of doubt and dispute For thereby is saued and reserued to them like authoritie to accept and receiue the submissions satisfactions to absolue and release and to signifie and thereupon to haue such writs c. in such maner and forme as heretofore respectiuelie they haue vsed as hath bene accustomed and as they or any of them had or ofright ought or might haue had anything in that statute specified or conteined to the contrary here of notwithstanding If then they may still signifie in like maner and forme shall haue writs thereupon may absolue and release receiue satisfaction and submission c. as they had done before that time then may and ought the writ de excommunicato capiendo to be awarded for contempt arising on other originall causes ecclesiasticall then any of those ten crimes in that statute reckoned For so Ordinaries did and had afore that time and since also whatsoeuer this opinion now doeth deliuer to the contrary CHAP. XVII Of a Prohibition what it is where it lieth not and where it doeth and how it ceaseth by a Consultation of the writ of Indicauit WHen any Court goeth beyond his bounds and dealeth in other matter or sort then the lawes of the land will warrant there lieth in some cases writs at the common lawe which are of Prohibition or Indicauit and in other cases a writ brought in by statute called Prouision and Premunire and the Prohibition and Praemunire doe lie as well against temporall as against ecclesiasticall Courts The Prohibition is a charge by the kings writ to forbeare to hold Plea either in some matter or maner which it is supposed a man dealeth in beyond his iurisdiction or otherwise then lawe will warrant Euery Prohibition is either Prohibitio iuris by the very lawe it selfe or Prohibitio hominis where the ministerie of the competent iudges in that behalfe is vsed Any Statute prohibitorie is 1 21. E. 3. fol. 29. Prohibitio Iuris a very prohibition
and so the iudgement then passed vpon this ground among others as 2 Brooke Consultation nu 5. Brooke testifieth And 3 T. 12. H. 7. fol. 22. there is a great diuersitie betwixt a duetie or summe of money or other things at the first demandable and determinable at the Common lawe and such a summe as before sentence giuen in the Spirituall lawe is not due at all For the first there lieth a Prohibition but not for the second for otherwise it would followe that the spirituall lawe might giue a iudgement which it could not put in execution but this were absurd per Reed Tremaile Fiftlie it is sayd that there lies a Prohibition when the partie sued hath an action giuen him at the Common lawe for the originall and principall matter whereupon the suite at the ecclesiasticall lawe did grow The case was thus Aman 4 T. 22. Ed. 4. fol. 20. reported that the Abbot of S. Albanes did detaine his wife in the said Abbots lodging against her will to the intent to make her his harlot the Abbot hereupon brought his action of Diffamation in the Court ecclesiasticall and the husband his prohibition nowe because the husband might haue his action of false imprisonment at the Common lawe agaynst the Abbot Brian held that a Consultation was not to be graunted de hoc quaere A prohibition ceaseth and looseth his force after a 5 Stat. de Consultat 24. Ed. 1. Consultation be once granted This may bee prooued by the Statute De Consultat for the Chanceller or chiefe Iusticer of the king vpon sight of the Libell c. if they can see no redresse by Writ c. shall write to the spiritual iudges c. to proceed notwithstanding the kings prohibition directed to them before But more plainlie after Where 6 50. Ed. 3. ca. 4. a consultation is once duely granted the Iudge may proceed in the cause notwithstanding any other prohibition thereupon to him to be deliuered so the matter in the Libell be not changed The writ of Indicauit is 7 Fitzh Natur. bâ—… tit Prohibition fol. 45. likewise a kind of Prohibition and lieth especially naturally for a suite of tithes which do amount to a fourth part or aboue of the whole benefice It lieth also for the Patrone where his Clerke is impleaded for the aduowson id est the right of Patronage in a spirituall Court the Patrone and Clerke that is sued in the court ecclesiasticall may sue it foorth both against the Ecclesiasticall Iudge and the partie that sueth there But it 1 34. Ed. 1. de coniunctim â—…fat lieth not till the Libell be brought to be viewed into the Chancerie lis 2 Fitzh ibid. etiam contestata and 3 Regist. fol. 47. it lieth onely before sentence be giuen in the Court ecclesiasticall for it is afterward voyd CHAP. XVIII An Analysis or vnfolding of the two speciall statutes touching Praemunire with sundrie questions and doubts about that matter requiring more graue resolution IN the matter of Praemunire which is a question falling often in doubt about execution of Ecclesiasticall iurisdiction wherein as in the matter of prohibition consultation you desired earnestly that I would write vnto you what I thought I cannot in any point satisfie my selfe much lesse you by reason that this matter is enwrapped in ouer many difficult doubts for me to vnfold yet I haue some thing considered of it do trust that I shal be able to point out vnto you certaine general heads whereunto most of the doubts coÌ„monly made or hapning may not vnfitly perhaps be referred that thereby tanquam Thesei filo you may be directed as opportunitie shal serue what how in this behalfe to enquire of the reuerend Iudges or of other great learned and graue men of that profession There be two statutes whereupon it is principally grounded The first is 4 27. Ed. 3. cap. 1. de Prouisor of Prouisors established in the time of king Edward the 3. the complaint and griefe there propounded was that the kings people were drawen out of the Realme to answere vnto things whereof the Conisance pertaineth to the kings Court and that iudgements there giuen were impeached in another court The mischiefes then noted thereupon were the preiudice and disherison of the king and of his crowne and of all the people of the Realme and the vndoing and destruction of the Common lawe of the Realme The remedie there giuen for these mischieues was that if any of what condition soeuer being of the kings liegeance should drawe any out of the realme in plea whereof the Conusance pertaineth to the kings court or of things whereof iudgements be giuen in the kings court or which do sue in another court to defeate or impeach the iudgements giuen in the kings court should haue day c. as is there more largelie by the sanction contriued The other statute is 1 16. R. 〈◊〉 cap. 5. of the time of king Richard the 2. there is shewed and laied foorth that the Conisance of plee of Presentments to Benefices belongeth onely to the kings court by the old right of his crowne and that Archbishops Bishops and other spirituall persons hauing the instituting vnto such Benefices within their iurisdictions be bound and haue made execution of such iudgements by kings commandements without interruption and that also they bee bound of right to make execution of many other of the kings commandements but it is there complained that processes and censures of excommunication vpon certaine Bishops of England were made by the Bishop of Rome because the sayd Bishops haue made execution of such commandements and that hee purposed to translate some Prelats out of the realme some froÌ„ one bishoprike to another within the Realme without the Kings knowledge and without their assent that so should be translated There are assigned also for mischiefes hereupon growing the open disherison of the crowne the destruction of the king of his lawe and realme and that these things are against the kings crowne and regalie that they defeate and destroy the statutes that they tend to make the realme submitted to the Bishop of Rome and the lawes and statutes of it by him to be defeated and destroied at his will that they drawe out of the realme against the kings will the sayd Prelates his liege persons of his councell that be much profitable and necessarie to the king and to all his realme and that these deuises will be are away the treasure of the Realme for remedie whereof it is prouided what shall not bee done viz. that none shall purchase or pursue or doe to bee purchased or pursued where in the Court of Rome or elsewhere what any such translations processes and sentences of excommunications buls instrumeÌ„ts or any other things of what sort which touch the king against him his crowne and his regalie or his realme in what maner touching these as is aforesayde and
statute 1 25. H. 8. c. 19. All such Canons cōstitutions ordinances synodals prouincial being already made which be not cōtrariant nor repugnant to the lawes statutes customes of this Realme nor to the dammage or hurt of the Kings prerogatiue royall shall now still bee vsed and executed as they were afore the making of that Acte c. So that no Canons establishing proceedings onely diuerse but Canons contrariant or repugnant to the Lawes c. be thereby repealed Nowe we are taught by the rules of Reason that two propositions reteyning otherwise the same termes the one being vniuersally negatiue and the other vniuersally affirmatiue be contrariant one to another And though in materia contingenti both such may be false yet they can neuer be both of them true Therefore if the one be true the other of them must needes be false For example of contraries the Common Lawe holdeth that All aduowsons or right of patronage may lawfully and without Simonie be bought and solde This proposition then being true the contrary proposition hereunto which is established by the Canon Lawe viz. that no right of patronage may lawfully or without Simonie be bought and solde must needes be false and therefore by the Common Lawe doth stand in this Realme repealed in respect of this contrarietie The word Repugnant in the saide statute we see is put after Contrariant as of a greater force and efficacie and therefore is to be vnderstoode according to the common course of our speach albeit the Logicians doe not so vse that worde for the contradictorie opposition consisting of an vniuersall affirmatiue and a particular negatiue or of an vniuersall negatiue and particular affirmatiue And these be so opposite ex diametro and doe alwayes so directly thwart one another that in euery subiect matter whatsoeuer the one of them being true the other must needs be false è conuerso As for example The Canon Lawe holdeth that All fighting in Duello that is to say triall by battaile of one single man against another is vnlawfull But the Common Lawe contradicting this doth holde that some triall by battaile as in a writ of right and in an Appeale of murder or robberie is not vnlawful And againe the Canon Lawe holdeth that none aduowsons or right of Patronages may be in grosse But the Common Lawe is in the flat Contradictorie hereof that some aduowsons be in grosse as well as others be appurtenant to a manoure And therefore in neither of those Cases such Canons haue place in this Realme in respect of this Contradiction and Repugnancie If then it may be shewed that some proceedings of the Common Lawe against crimes be also entred into without either Accusation or Presentment going afore then where the course of both Courts be not so much as diuers there cannot possibly be found either Contrarietie or Repugnancie vnlesse we should say that the Lawes and statutes doe condemne that as vnequall and vniust in Courts Ecclesiasticall which they establish and practise in Temporall Courts for good and iust As then an Appeale brought at the Common Lawe doth most neerely resemble an Accusation in the Ciuil and Common Lawes so hath enditement a correspondence and doeth answere vnto their Presentments being also in statute often called by the name of Presentment These two kinds of prosecution of Crimes at the Common Lawe be mentioned in a statute of K. Henry the fift in these words 1 7. H. 5. ca. vnico Diuers men of malice and enmitie and for gaine and vengeance haue often caused to be indited and appealed diuers of our true liege people of treasons or felonies in the Countie of Lancaster pretending by those Appeales and Inditements c. And though these two be the courses of bringing a man in processu punitiuo into trial of matters Capitall yet for infinite other offences and crimes not Capitall the Cōmon Law hath vse of Bils in the Starre-Chamber and of Informations in the other Courts at West-minster Neither of which can be truely called either Presentment or Accusation Not Presentment because no such peculiar charge of preferring vpon their oathes is layde vpon them as is vpon Iurors at Enquests that finde Inditements or as is vpon Church-wardens and Side-men who make Presentments Not Accusation because as is aforeshewed such Bils and Informations be both of them put vp ex officio promoto Againe they cannot be called Accusations because those who put them vp are not parties but the King is the partie For it is thus said in Statute 2 3. H. 5. ca. vnico He that will sue for the King to attaint them that pay or receiue such coyne as is there forbidden shall haue the one halfe of the forfaiture And after in the same Kings dayes 3 8. H. 5. ca. 3. He that will sue for the King in this behalfe shall haue the thirde part of that pecuniarie paine So that whosoeuer doth preferre or follow them yet the suite is the Kings and he the partie whose also the Court is where the suite is prosecuted It may appeare that at the Common Lawe other meanes besides Appeale and Enditements which respectiuely doe resemble Accusation and Presentment be receiued to ground a Iudges Enquirie vpon in Processu informatiuo whereupon also followeth oftentimes processus punitiuus that is the triall of the Offender As first by the common custome and practise of the land For doe not some seuerall Iustices of the Peace vpon their owne suspicion conceiued or vpon secret relation of others whome they credite send for men by warrant to be apprehended and brought afore them doe they not take informations sometimes against supposed offenders vpon depositions of witnesses before the partie be sent for Doe they not also without any such witnesses often-times examine the partie himselfe and according to their discretion binde him to the Peace or to his good behauiour or perhaps send him to the common gaole to be imprisoned Doe they not receiue and sometimes preferre and procure enditements to be found as of common Barattarie and such like Crimes vpon their owne onely suspicions or by information of some one other perhaps an enemie and vpon other as meane presumptions Are not sundrie persons trauelling through some towne or founde in some priuie searche lodging there with good reason oftentimes brought to a straite examination and enquirie of matters Criminall vpon the onely view of their persons and deportment without all further intelligence or cause of suspicion Yet be all these without Appeale or enditement and many times vpon as light and perhaps lighter suspicions and informations lesse likely and credible then any be admitted in like case by the Commissioners ecclesiasticall and much lesse by Ordinaries who must in case an Appellation be brought in a more strict course of Lawe be able soundly to iustifie the inducements that they had to leade them into those criminall questions and enquiries Yet vpon these grounds alone not onely
Common Lawe will not giue so large a scope vnto Iudges ecclesiasticall against such doubters I will obiect those wordes of 3 Magna Charta cap. 1. Magna Charta where it is not a newe graunted but Confirmed onely That for euermore the Church of England shal be free and shall haue all her whole rights and liberties inuiolable And this is a confirmation of their rights and liberties before any graunt was made to the rest of the Realme besides being yeelded at such time when as through generall ignorance it was vntruly holden that the state Ecclesiasticall signified there by those wordes The Church of England had not their Iurisdictions from the Prince but from God alone deriued downe to them by the meanes of the Pope and therefore that their Courtes and Lawes whereby they proceeded were not in any respect to be accounted for Courts holden by the Kings auctoritie or their Lawes the Kings Lawes Whereupon arose that vntrue and preiudiciall phrase of seuerance of a Court Christian from the Kings Court So that if they were confirmed to them when their Iurisdictions in facte were not holden of the King as now they be and ought to be by Gods Lawe is there not then more iust cause so to continue them at this time seeing they be not so much as a diuerse course from the Customes and Lawes of the Realme in Courts Temporall But that this course of proceeding in causes Criminall sometimes without either Accusation or Presentment is in trueth a right and libertie of the Church of England may appeare by that which to this point hath bene afore deliuered and by the continuall practise also of those Courts in all ages as the Acts thereof from time to time doe make very manifest Yet this is more particularly and neerely prooued in the very point that we handle by a 1 1. Eliz. ca. 2. statute made in her Maiesties reigne where it is prouided that Ordinaries not only at any other time and place then at their visitations and Synods may take accusations and informations a word of farre more large signification then Presentment but may also enquire else-where within their iurisdiction Which Enquirie is afore shewed to be alwayes ex Officio and being absolutely spoken without further addition and in some sort seuered from all ki◅de of Informations must necessarily be without Presentment But how farre and in what maner may they so doe Truely in like fourme as heretofore hath bene vsed in like cases by the Queenes ecclesiastical Lawes If then to proceed Criminally without either of them two be warranted practised by the Queenes ecclesiasticall Lawes as afore is shewed assuredly this Statute doth auouche and iustifie them To this disputation may be referred that obiection which the Notegatherer maketh touching a 2 11. H. 7. ca. 3. statute of K. Henry the seuenth Note gatherer whereupon he saith Empson and Dudley proceeded that was 3 1. H. 8. ca. 6. repealed by another in the time of K. Henry the eight although he putteth it vnder his title of the lawes of England as by them seeking to impugne al proceeding ex officio albeit vnder presentment which this opinion alloweth proceeding ex Officio is necessarily implied and presupposed For answere whereof it is true that the saide statute was so repealed but whether it were the same and the onely statute whereupon Empson and Dudley proceeded is left there vncertaine and vntouched Howsoeuer it was in this behalfe seeing it authorised all Iustices of Assise and of the Peace to proceede thereby it is most probable that many besides them two did also deale by vertue thereof The effect of the saide statute was that vpon information to be made for the King afore Iustices vpō any penal statute not extending to life or member they might without enditement heare and determine all offences against the forme of any statute in force The reason of making the said statute is signified by the preamble to haue bin for that although at Sessions charge was giuen to enquire of many offences against statutes and Enquests to that effect were straightly sworne and charged to enquire and to preferre the trueth yet they were letted to be found by imbracerie maintenance corruption and fauour by occasion whereof the statutes coulde not be put in due execution And againe in the same place The twelue men for the causes afore rehearsed will not finde nor present the trueth Howesoeuer this were at that time it may bee feared that it is in some place too true still euen vntill this day So that if this were then a sufficient cause to make such a statute the cause still continuing if not encreasing that statute will seeme to haue beene in that regarde lesse vnreasonable In the statute of Repeale thereof for the reason of abrogating 1. Hen. 8. c. 6. it is onely assigned That thereby many sinister craftie feigned and forged informations haue beene pursued to the great damage and wrongfull vexation of the subiectes But this might aswell happen euen when men be prosecuted by way of enditement For is it not vsuall to finde them vpon any one mans euidence and information the Iurie not regarding oftentimes what enimitie rests betwixt them Therefore it was not the course by information that displeased but the badnes of the informations that gaue occasion of repeale For by statute euen in K. Hen. 8. 31. Hen. 8. c. 14. his dayes an Information was made equiualent vnto a presentment by verdict of twelue in matter of heresie that is far more penal then the former Which cruell statute I would not haue alledged but that the Note-gatherer groundeth himselfe thereupon for another purpose And we see that there is no such cause alledged as the Note-gatherer insinuateth either as if it were an vniust vnreasonable course or in respect that it was ex officio at the instigation and solicitation of some one person or yet that it was without Appeale or Enditement For if it had bin simply vniust then all the treasure which had bin leuied by colour thereof should haue bin restored And it is euident that Bils and Informations against offenders are still in frequent vse and may be preferred for the Queene by any and against any whomseuer And those which be found offenders may without either Appeale or Enditement be condemned and punished thereupon in sundry geat penalties and losses both pecuniarie corporall and of their good name and credite And for further proofe that it is at this day holden none vniustice by the tempor all lawes for to ground an enquirie yea and also a Conuiction without either Appeale or enditement is plainely prooued by a latter statute which is yet in force For Iustices of 5. 6. Edw. 6. cap. 25. Peace at their Sessions haue authoritie to enquire of the offences of them which be admitted to keepe Ale-houses not onely by Presentment but by Information or otherwise by their discretion c.
and may heare and determine the same by all such wayes and meanes as by their discretion shall be thought good And a litle after it is there enacted that the Certificate of the Iustices touching euery such Recognisance and offence shall be a sufficient conuiction in the lawe of such offence So that for this one kinde of offence as much is established by this statute as was for sundry others by the aforesaid repealed Acte And therefore it is no course of proceeding condemned as simplie vniust howsoeuer the famous King Henrie the eight was willing at the very entrance of his reigne to gratifie his subiectes by that Repeale Another obiection in this behalfe is taken out of the preamble of the repealed statute for heresie made in the time of the aforesaid king Henrie the 8. the wordes are these viz. It standeth not 25. H. 8. ca. 14. with the right order of Iustice nor good equitie that any person should be conuict and put to the losse of his life good name or goods vnlesse it were by due accusation and witnesse or by presentment verdict confession or processe of outlawrie Which wordes you see doe speake of conuiction and of being put to losse of one of those three and not of the calling into question and maner of proceeding This doeth appeare in that to the worde Accusation is ioyned Witnesse with a copulatiue whereas the opinion whereof we treate implieth that either vpon any Accusation or yet vpon Presentment without any more adoe an Ordinary may grounde his further proceeding But a man may not be conuicted in a Court Ecclesiasticall either vpon a bare Accusation or Presentment without witnesses or his owne confession to which I thinke may well and with good reason be added wilfull contumacte and not presumed onely which contumacie both in Ecclesiasticall Courtes and some others of this Realme amounteth to as much in construction of lawe as a confession and it hath a correspondence vnto an Outlawrie that is a kind of conuiction at the Common lawe grounded vpon wilfulnesse onely presumed Moreouer this preamble doth not rest in the two wordes of Accusation or Presentment being the onely things required by this opinion to warrant proceeding Ecclesiasticall but addeth also witnesse verdict confession or processe of outlawrie and therefore cannot by any meanes be referred vnto enducements to ground proceedings vpon but onely vnto meanes of conuiction and the rather because in that whole sentence no verbe passiue is vsed but conuicting and putting to losse c. which maketh me the more to maruell how the word Presentment with a disiunctiue came in amongst the rest as if by a Presentment alone a man might be conuicted or put to losse of any of these three Some other wordes following in the same preamble are also Ibidem brought for this purpose viz. wherefore it is not reasonable that any Ordinarie by any suspicion conceiued of his owne fant asie without due Accusation or Presentment shoulde put any subiect of this Realme in the infamie and slaunder of heresie to the perill of losse of life losse of name and goods These wordes are inferred vpon the former and are directed vnto none other crime but Heresie where the perill and penaltie is so grieuous as losse of life losse of name and goods ioyntly together therefore can by no reason be drawne stretched vnto euery other crime ecclesiastical where no such perill of penaltie or of punishment resteth For wordes of statutes are of strict interpretation and are most strict in matters criminall and penall and therefore may not be extended vnto other crimes then are expressely mentioned yea though there were in both a like reason Whereas in trueth betwixt the punishment of Heresie Atheisme or Apostacie and other crimes ecclesiastical there is as great dissimilitude as may be For death in those three is not inflicted but when all hope of amendement and reformation of the partie himselfe is past and he is therefore taken away by death to the intent others may be terrified by the example and that he haue none opportunitie to entise any moe to his heresies or to continue in his blasphemies against God But in the correcting of all other crimes ecclesiasticall though secondarily sometimes the terrour of others is sought yet principally the parties owne reformation and bringing vnto penitency and amendement is intended For hereby he sustaineth no losse at all not so much as of his good name but rather a gaine because after his reformation and repentance he ought to be of al Christians holden as deare and precious in Gods sight The Angels reioyce at the conuersion of a sinner and doe not vpbraide as if by falling into the sinne his credite had neuer bin impaired In which respect those Canonicall penances were by the fathers of the Church and by the olde and pure Canons said to be medicinae animae rather then poenae yet not as satisfactorie for the sinne but as good inducements vnto and also testimonies of repentance And you knowe how absurd a kind of reasoning it is either to argue from one thing to another à dissimilibus or to reason from that which is more likely to be vnto that which is much lesse likely viz. à maiori ad minus affirmatiuely as must needes be out of this place for thus their obiection must bee gathered Without accusation or presentment of heresie none shal be put in perill of losse of life losse of name and goods therefore without the one of these two an Ordinarie may not proceede to the punishment of any other lesse offence ecclesiasticall Yea though no one of these three and much lesse all of them be any way thereby hazarded or brought into perill Furthermore in these last recited wordes there lieth a plaine opposition betwixt any suspicion conceiued of the Ordinaries owne fantasie and a due accusation or Presentment Therefore if sound and credible information notice euidence or other sufficient matter may appeare to be brought vnto him so that hee cannot be sayd suspiciouslie to conceiue it of his owne fantasie onely then the true intent hereof is thereby satisfied But shall the Preamble of this repealed Statute stand for sound authoritie and shall not the equitie and reason of the very bodie of the Statute it selfe 11. H. 7. though afterward repealed much rather then a Preamble be receiued for a good argument proouing that it is neither vniust nor vnreasonable at some times to ground a Iudges proceeding criminall without either Appeale or Inditement Lastlie here seemeth a due accusation or els a due Presentment of Heresie in reason and equitie to bee required but it is not here neither as I take it else-where by the lawes of the Realme determined what may bee accounted a due accusation or a due Presentment of a crime in an Ecclesiasticall court Then as I construe the lawe must it bee left vnto the lawe ecclesiasticall to determine when these may bee sayd to bee
further care I thinke it will not be so supposed The like then may be sayd of Ecclesiasticall officers and offences notwithstanding all generall Enquiries in Senes or Synodes and in visitations But it will perhaps be sayd in the one Court they may bee presented by the sworne men and in the other by enditement of the grand Iurie at Sessions and Assises c. It is true they may be but how many I pray you are so found out and endited from time to time by the grand Iuries of their own enquiries knowledges if either some partie grieued in particular doe not giue euidence or the Iudges or Iustices of themselues do not informe them and vrge them notwithstanding the straitnesse of their charge and oath and that they be taken out of the seuerall parts of euery shire But be it that some notorious murtherer or felon is soby them endited at some times how many other offenders in penall statutes being men of any reckoning in the shire are endited at all thorowout the Realme in many yeeres if none of the bench do take care to vrge the Iuries as Recusants in comming to diuine seruice such as haue and keepe Reteiners and giue liueries contrary to statute onely to band in quarrels and to mainteine bad actions or yet such as goe excessiuely in apparell or which violate the statutes appointed for not eating flesh vpon certeine dayes Nay it falleth out often times that the more to giue edge to such Iuries to do their duties euidence hath bene giuen vnto them in these offences yea such and so good as vpon lesse euidence they would perhaps haue endited a man of felonie to the hazzard of his life especially if he were but some base fellow Now when none almost will be found to giue euidence sauing in such a cause where he findes himselfe or some of his pinched yea and not in such neither if the other partie be a man of any tolerable reckoning or ability and very few albeit themselues do perfectly know it or haue reasonable good euidence giuen against some man of power that will finde an enditement against such an one although both he that giueth the euidence secretly and all the Iurie may be in some hope not to be knowen who it was that did principally stirre in it because they be sworne to keepe the Queenes counsell their fellowes and their owne can it then with reason be imagined that any man almost will be found voluntarily to become an Accuser and to prosecute at his owne costs and charges Experience teacheth that most men will not few that dare and those onely such as take themselues in some particular respect wronged We see in a great multitude of penall statutes at the Common law how men by third parts and moities of forfeitures besides great priuileges in proceeding are as it were allured and entised to informe against offenders yet very few notwithstanding such great gaine as thereby might be got are found besides such as make an occupation of it that will voluntarily preferre informations albeit there be enow that want the money and could well be content to finger it out of what male factours purse soeuer it came The reasons of this backwardnesse in informing I take to be the charge trouble common obloquie and offence taken by them that be prosecuted and thereby feare and perill to come vnto some further mischiefe vpon their procurement or for their fauour Now where men that are so well hired and by reason the Queene is partie to such informations so fully in all reason protected will not lust not or dare not preferre matter penall against others shall wee looke for better courage to be shewed by priuate persons against offenders in Ecclesiasticall crimes where they can expect no such countenance nor remuneration to lighten the other burthens and dangers and therefore either of Office to be prosecuted or must be wholly left vnpunished In riots committed and done vpon others we see iust cause of griefe for the iniury receiued and thereby occasion giuen to seeke lawfull reuenge There was good remedy also prouided for them at the Common law Yet in the time of king Henrie the seuenth for a further remedie and repressing of them by the Lords of the Starre-chamber the State was driuen to make a statute By authority whereof their Lordships proceed in that and others ex officio albeit in many causes they haue some partie grieued that by way of complaint promoteth and prosecuteth the office Yet the proceeding is as was touched afore by way of enquirie in that no man there sueth for priuate recompense but the scope of the whole processe is criminall ad vindictam publicam vel corporalem vel pecuniariam applicandâ—…m fisco non parti So that where men haue â—…ust cause of griefe yet was it thought very expedient requisite to prouide a sharper course by way of enquirie of office How much more then is this course needfull to be holden for punishing Ecclesiasticall crimes which by the policy of this Realme haue no other punishment and where no man hath for the most part any priuate iniury whervpon to complaine himselfe Here perhaps it will be said that he which can giue information of a crime to a iudge may accuse or procure a presentment in an Eccelesiasticall Court if it be of that iurisdiction or may informe and procure an enditement if the cause be Temporall or els that it were meet his information be not beleeued but that he should be holden as a slanderer and a malicious person We are to remember that if this Dilemma viz. either thou must accuse and prosecute him c. or else thou art but a slanderer had not quiddam tertium to minister answere vnto it many grieuous faults should passe vnpunished and many poore men should be sore pinched For experience teacheth that 1 Clarus ibid. q. 6. often times euen in crimes publikly committed you shall hardly finde witnesses that will depose their direct knowledge when it tendeth to the offence of some man of countenance that may do them a displeasure after And therefore they will either say they saw it not heard it not marked it not or at that time remember it not Yet it is knowen that a witnesse is vrged by the religion of an oath and is not entended to thrust himselfe into the matter willingly which as it ought to serue to take away all offence conceiued by him whom he toucheth so ought it to wash away all feare and other affection in the witnesse Then how much more probably may it be supposed that there is many a meane man though otherwise able to giue good and true information perhaps of three or foure witnesses which doe know the matter more fully and touching other particularities sufficient for a Iudge to enquire and to looke into the partie so denounced who neuerthelesse in many respectes dare not become an open Accuser or a preferrer of presentment of
not so much as iiij s. towards their charges that Iustices of Peace be allowed by Statute at such times as they serue at Sessions of the Peace c whereas Commissioners are employed and serue therein freely at their owne charges with losse of time and intermitting their owne businesse only of dutie and conscience to her Maiestie and to the Common weale So that if it were not in this respect the Commissioners ecclesiasticall both might and would sit still with more ease to themselues and lesse obloquie howbeit by the worst of euery sort of Subiects As for Courts of Ordinaries I knowe some of the greatest of them in England that haue not two matters ex Officio mero prosecuted in them in three yeeres space And for such ordinarie Courts as haue some moe causes of that nature alas what great fee is it for the Iudge ecclesiasticall to haue iij. pence for a Citation or vj. pence for examination of a witnesse or vpon an acte of Absolution or such like to make him desirous in that respect to entertaine the cause seeing hee will hardly be excused with xx pound charges that euery such seuerall matter may put him vnto if an Appellation be brought vpon any errour or mistaking that may happen to be found in his proceedings of Office Besides that the like fees are due to the Iudge no lesse vpon the prosecution of a partie then they be vpon proceeding by office and therefore none inconuenience heereupon more in the one course which this opinion alloweth then there is in the other Yea may some say all prooue not offenders that be so called and that are thereby put vnto trouble and charges It is true yet meet to be called if the law be obserued in this point that there must be afore a sufficient ground of inducement thereto Neither doe all those prooue to be offenders that are prosecuted by a partie or by an Accuser and thereby be put to no lesse charges and trouble euen when besides the malice of the preferrer there was no colourable ground of the accusation The like may be also truely said of many others who be called euen before temporall Iudges and Iustices of the peace either by warrant writte or otherwise Yet is this no cause heereupon wholly to disallow these conuentings And there is no more reason to finde fault with the fees due vnto the Iudges ecclesiasticall in regard that euery one which happeneth to be conuented prooueth not guiltie of the matter imputed to him then there ought to be with the fees that are due to Iudges in temporall Courts for iudiciall or originall writtes c. because many of such suites be commenced as often falleth out in the end without good matter on the Plaintifs or Informers behalfe Thus much in answere to the obiections made against the reasonablenesse and conueniencie of proceeding by Office CHAP. XI That the lawes of the Realme do vse Enquiries and proceedings ex officio and that they allow it in Courts Ecclesiasticall with answere to some obiections that are made to the contrary IN the next place I am to shew that dealing by way of enquirie or enquest ex officio without suite of a partie called by the Common law Office del Court are both mentioned and practised by the lawes of the Realme In 1 Mag. Charta cap. 26. Magna Charta mention is made of a writ of Inquisition of life and member In an olde statute of king Edward the first a seuerance is made betwixt the suite of the King from the suite of a partie and the King is thereby as it were bound to sue and to lend his office for prosecution of the misdemeanours For it is 1 3. Ed. 1. cap. 13. thus prouided that if any take away a woman by force c. the King at his suite that will sue shall doe common right within fortie dayes and if none commence his suite within fortie dayes the King shall sue Which suite being in his owne Court and before himselfe must needs be of office For where there is Inquisitio Enquirie there the King is partie as by another statute of the same 2 Star de Inquis capiend 33. Ed. 1. Kings dayes appeareth De Inquisitionibus coram Iusticiarijs quibuscunque capiendis in quibus D. Rex est pars qualitercunque concordatum est c. In a statute of 3 18. Edw. 3. pro Clero c. 2. king Edward the third arreignment at the suite of the King which is ex officio as a distinct matter from that which is at the suite of a partie is spoken of and so 4 42. Ed. 3. c. 4. are also Commissions of inquisition afterward Furthermore in K. 5 8. H. 6. c. 16. Henrie the sixt his time en quest or inquisition of office is mentioned and in sundrie 6 11 H. 7. c. 25. 1. H. 8 c. 12. statutes both after and afore which are needlesse to be repeated For as I take the matter euery enditement is an Inquisition which if it be at the prosecution of a partie it is as officium promotum but if it be by the Iudges for the Queene in respect of the interest of the Common-wealth then is it officium merum or nobile as afore is declared This maner of dealing in sundrie cases is so vsuall at the Common law that there be whole titles made in the Abridgements touching Inquisition and office del Court viz. of enquiries and matters done by the Iudges vpon their discretions without the instance of any partie In reports at the Common law we finde it said 7 M. 20. H. 6. 38. that Iudges ex officio did charge an enquest to make enquirie of their owne collusion supposed to be committed among them 8 34. Edw. 3. 3. Further One of a Iurie that departed from his fellowes after that he was sworne was examined at his returne by the Iudges ex officio whether he had since spoken with the defendant or no Likewise it is said 9 11. H. 4. 17. that the Court ex officio ought to award an Assise to enquire whether the disseisin were with force by reason of the kings fine In the booke of 10 Assis. lib. 16. pag. 4. Assises The Court ex officio sent a man to prison because they found he had not made fine And a great number of particular articles are there set down wherupon 11 Assis. lib. 27. pag. 138. enquest or inquisition ex officio in the Kings bench is to be made We finde of elder time by 1 Bracton li. 4. c. 8. fol. 302. Bracton where the appellor that prosecuteth makes default or dieth there the king may proceed ex officio And againe there Let the king ex officio suo for his peace proceed to inquisitiō for the suspicion that he hath of the appeale Moreouer where a Parson and Vicar were both willing enough to sue before the Temporall Iudges yet 2 M. 22.
Ed. 4. 23. the Iudges finding the plea to be of Ecclesiasticall iurisdiction did ex officio at no mans instance dismisse it out of that court as not perteining to their iurisdiction And do we not often see the ordinarie course for enditements much assisted and holpen by the Iudges and Iustices search examinations and dealing therein of office and duetie onely both in treasons felonies and in other causes of more priuate interest that be preferred by others doe they not also vpon their owne discretion for causes knowen to themselues without prosecution of any partie and so ex officio onely often times commit persons of suspected behauiour to prison and not dismisse them till by a writ of enquirie de bono gestu fama they be found worthie to be set at libertie So that by these few and sundry other that might be brought it may appeare that proceeding and enquirie ex officio is so farre from being so much as a diuers course from the lawes of the Realme that it is often practised thereby when no partie besides the Iudges themselues do entermeddle But it is not onely by that law practised but also allowed by it for a lawfull course of proceeding in Ecclesiasticall Courts against crimes and offences By a statute of 3 2. H. 5. cap. 1. Henrie the fift such an Inquisition of Hospitals of the Kings foundation is appointed vnto Ordinaries and in those that be of any other mans foundation Ordinaries are authorised not onely to enquire of the foundation estate and gouernance of them and of all other matters necessarie in that behalfe but also to make thereof correction reformation after the lawes of holy Church as to them belongeth So that if Ecclesiasticall lawes doe warrant this enquirie and course of reformation and correction then this statute will giue force vnto it By 4 1. H. 7. cap. 4. another statute If any Clerkes be conuicted of incontinent liuing in their bodies being but afore perhaps openly noised thereof before whom conuicted afore Ordinaries How by examination other lawfull proofe requisite by the law of the Church they may by the Ordinarie at his discretion be committed to ward Which together with the committing must needs be both done ex officio for that no partie to prosecute is there mentioned to be required and because the Ordinarie thereby may proceed vpon the publike infamie noised abroad The statute of 1 23. H. 8. ca. 9. Citations made afterward mentioneth a case where an inferior Ordinarie may be partie to a suite holden afore him which may aswell be vnderstood in a cause mooued of Office for an offence as in any other matter But more plainely afterward for there the very word ex Officio is vsed and it is prouided that the forfeiture of that statute for calling a man out of the iurisdiction where he dwelleth shall runne against him that cited whether he proceed by vertue of his office or at the suite of any person Whereof may be gathered that the lawes of the Realme take knowledge of that course ex officio to be as warrantable as the other made at the suite of a partie so that other requisites be obserued And though the statute against Heresie stand 2 27. H. 8. ca. 10 now repealed yet it may serue to prooue that not onely inquirie but examination also of the partie himselfe in a visitation by Ordinaries both which are done ex officio is holden for a course of the law ecclesiasticall not to be condemned or disallowed by the lawes of the Realme In a statute touching 3 1. Ed. 6. cap. 2. Ordinaries seales now also repealed certeine ecclesiasticall causes be rehearsed among which causes of instance betwixt partie and partie are plainly seuered distinguished from causes of correction thereby giuing vs to vnderstand also how rarely causes of correction be prosecuted by any partie but by the Iudge ecclesiasticall himselfe alone proceeding of Office And 4 1. Eliz. cap. 2. by a statute in the first yeere of her Maiesties reigne made for vniformitie of Common prayer Ordinaries are authorised to inquire and to punish c. the violation of that act as heretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes But that an enquiry is alwayes of office and what the lawes ecclesiasticall be in this behalfe and how the continuall vse hath bene is shewed afore so that none need remaine doubtfull in these points The very Common law not onely taketh knowledge of this course holden in Courts ecclesiasticall but in some respect doth also priuiledge it euen aboue the proceeding by a partie 1 7. H. 4. 18. For if an Ordinarie doe sequester goods of the dead for any contumacie or ex Officio which giueth no possession to him the court spirituall in this case shall haue Iurisdiction And it seemeth by that case the lawe to be otherwise when it is at the suite of a Partie So in a case 2 M. 20. E. 4. 10. of violent hands laied vpon a Clerke both Brian and Litleton held no man gaine saying of it that the spirituall court may punish it ex officio but not at the suite of the partie least the beater thereby bee kept from his absolution till some temporall duetie bee contented and paied And Mordant 3 T. 12. H. 7. sol 22. was of opinion that if a man bee sued by a partie pro laesione fidei in not paying a summe of money promised there shall lie a Prohibition yet if the iudge ecclesiasticall shall doe it ex officio that then no Prohibition shall lie Neither doeth any gaine say him herein Vnto which opinion of his another iudgement giuen in the 4 Assis. lib. 22. pag. 70. booke of Assises in like case seemeth to accord To like effect also 5 Fitzh nou nat breu tit Consultation fol. 50. c. Fitzherbert reporteth that an Ordinarie may cite and proceed against a man ex Officio pro violenta manuum iniectione in Clericum likewise for tithes detained in the time of vacation of a benefice so he may cite also such as refuse to maintaine a Curate or Chaplaine and for fornication or like offences Fitzherbert 6 Nou. nat br pag. 64. E. in another place also thus writeth If a man saieth he be sued in court Christian or if the bishop sue and cite him ex Officio and excommunicate him c. And againe 7 Ibid. litera F. thus Significauit lieth not but where the partie is excommunicate by name maiori excōmunicatione vpon a spectall suite against him ex Officio or by a partie therefore both are alike lawfull and allowable by the common lawe And that for wrongfull detaining of tithes in time of vacation of a benefice the ecclesiasticall Iudge may cite and proceed ex Officio doeth plainly appeare euen by 8 Liberties of the Clergie out of the lawes of the realme by Iohn Gooddall Printed by Rob. Wier
the end of the Epistle to the Romanes And againe the same Poet. Dicitur nostros cantare Britannia versus which argueth the vse and knowledge of the Latine tongue to haue bene then rife in this Iland That the Ciuill lawe of the Romanes was then vsed here their histories may testifie for they gaue their owne lawes to most of the Prouinces which they subdued and permitted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to very few of them Many of the same lawes were also taken vp and reteined by the Saxons euen vntill the Norman conqueror brought hither established the customes of Normandie And namely amongst others they retained til then the law y t al brethrē should participate alike their Fathers inheritance And we do 1 Cic. samil 〈◊〉 reade that Trebatius an ancient Ciuill Lawyer and often alleadged in the Pandects who liued in Iulius Caesars time more then fourtie yeeres before Christ did remaine at Samarobrina in this Iland of Brytaine Likewise afterward the 2 Forcatulus very oracle of that Law Aemilius Paulus Papinianus did professe the lawe and kept his Tribunall seate of Pretorship at the citie of Yorke Fourthly that the Chancerie tooke this course many points besides from the Ciuill law is apparant by the whole course of other proceedings there viz. by the defendāts answer to the bil vpon his oath and sometimes to interrogatories by the sundrie issues that there may be tendred by that terme and whole maner of publication of witnesses depositions by examining witnesses vpon Interrogatories by examining witnesses in perpetuam rei memoriam by the terme and vse of finall decree and manie other such like points much varying from the manner of common Lawe and iumping almost wholy with the Ciuill And to conclude this consideration is thereby made more probable for that in elder times the Chancellors to the Kings for the most part were Clergie men whose studie and profession then was the Ciuill lawes Therefore this vrging to put in answere vpon corporall oathes taken albeit the matter in some degree happen to bee criminall being a speciall practise in that chiefest Court of Equitie can hardly be construed to bee against equitie and being in the originall temporall Court of the land cannot bee contrary to the fundamentall lawes of the same and that Court being of so great antiquitie and continuance this answere by oath can not be an abuse or corruption lately crept in wherewith the Treatisour without any ground chargeth all those temporall Courts that haue receiued it In the Court of Starre-chamber the proceedings are against crimes criminally mooued by way of Enquirie though for the most parte at the promotion or solicitation of some priuate partie grieued namely against forgeries periuries subornations ryots rowts and other sundrie heinous misdemeanours against which there lieth no capital punishment nor losse of limme by the common law Yet is the defendant there to answer vpon his corporall oathe not onely to the bill preferred against him but to as many other perhappes sometimes euen crosse Interrogatories as the Counsell of the plaintife shall deuise But to this I heare it is replied by some that there bee two maine differences betwixt the course there and the proceedings in a Court Ecclesiasticall The first that none there is bound to take his oathe but onely where there is an accusation preferred against him by an other so as if he purge himselfe lawfully hee is to recouer dammages Touching recouery of dammages if by dammages be meant costs and charges these for the most part be in this case also giuen euen by the high Commission that is so much impugned For except it be immediately for the Queene there is a partie bound to prosecute and pay charges if the defendant bee molested without cause But if such dammages as they terme them bee recouerable in the Starrechamber I thinke they are not very great and where the matter is preferred once by her Maiesties learned Counsel I am tolde there be no costs adiudged though the defendant happen to be cleared But if in this behalfe there were any difference yet it makes no difference in the very point in handling videlicet that an oathe is there giuen to the partie in a cause criminall and penall to himselfe The other part of the replic builded vpon an accusation there preferred is indeede different from the course of Ecclesiasticall proceeding but yet if there be equitie for it in the Starre-chamber it doeth much more fortifie the giuing of such an Oathe in Courts Ecclesiasticall For in these Courts if there be an accuser or any partie that informeth or promoteth then the defendant is neuer examined by oathe vpon the very crime For when a partie prosecuteth who as the law intendeth doth it for malice reuenge or some other particular respect hee is not so much fauoured nor priuiledged in the proceeding as when the Iudge ex officio Nobili euen for his duties sake and for the publike commoditie of the common weale doeth make the Inquirie If then it bee both equall and lawfull in the Starre-chamber at the prosecution euen of a priuate person who may be intended for the most part not to doe it of conscience onely zeale of Iustice to haue vice punished to examine the defendant vpon his oathe for discouerie ofte times of faults and misdemeanours euen openly doone and committed and so the more easie to be prooued by witnesses and where the punishments are vsually corporall and otherwise farre more grieuous then bee inflicted in any Court Ecclesiasticall then howe can it in an Ecclesiasticall court be thought vnreasonable whereas the office dutie and charge laide vpon the Iudge are by common entendment the onely exciters and causes of prosecution and where if it be an Ordinarie Court canonicall penance for the reformation of the partie is inflicted And if it be before the Commissioners Ecclesiasticall neither their greatest corporall paine is so grieuous nor their fines so deepe And yet many of the crimes are as heinous towards God as secretly and closely committed and plotted as any crimes are that bee punishable before their Lordships in that most honourable and sincere court of the Starre-chamber The second difference by some taken in this behalf betwene these proceedings I heare is this that in the Starre-chamber a man is not driuen to answere directly to the fact it selfe but onely to the circumstances of the facte as was in Trussers case as is saide But I am certainely informed by those that haue better cause to knowe the practise of that Court then the Authour of these obiections and differences that the practise of that Court is cleane otherwise As for Trussers case it was the felonie onely a matter capitall to him that was ordered not to be enquired of him by Oathe but touching the lewd confederacie it selfe and of his other practises about it he was ordered by oath to answere them So that the reason of the like equitie in both courts
plaintife sworne to the trueth of his declaration and shall haue it If the plaintife sweare the defendant is condemned and if the plaintife refuse he is barred And may not this delation of such decisorie oath occasion and causatiuely vrge the plaintife sometimes to discouer himselfe to haue demaunded a debt not due which is dishonestie and vniustice or perhaps induce him to periurie partly for filthie lucres sake partly that he may not seeme to haue dishonestly demaunded what was not due vnto him if then a priuate person neuerthelesse may so deferre an oath but in a priuate money matter how much more may a magistrate in a publike crime these doubts and perils notwithstanding And the like decisorie oathes be not onely receiued in that Citie alone but also at the common lawe For 3 19. H. 6. 43. when the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis In an action of 4 44. Ed. 3. 41. detinue brought against a Deane for a chest sealed with certaine golde siluer and Charters in it as being deliuered to his predecessour the Deane tendered his law that is his oath quod non detinet and the opinion of the court was that he should haue it Now who seeth not howe many wayes this course may no lesse induce men vnto periurie For doeth not common experience teach vs howe readily for a trifling piece of gaine tradesmen in buying and selling will sweare falsely or els cautelously which is all one fault before God yea when as no such matter is required or exspected at their hands therefore howe much more strongly may periurie bee feared in a matter of good weight especially when men by the vexation and sute of their aduersaries are whetted on and where as they hauing a good while stoode in deniall their credits amongs other men might otherwise be called in question and seeme to be impayred And yet this danger that periurie may perhaps ensue is no sufficient reason to change the common lawe in this behalfe Howe then can most of the Treatisours arguments holde which are chiefly grounded vpon perill of periurie which he saith is likely a man will fall into rather then haue his good name and honestie brought into question and hazarded I haue also credibly heard that in the time of that Reuerend Iudge Dyer the court of Common pleas examined certaine by their corporall oathes touching a very lewde plat layde by some of them and the names of the dealers pro contra in that cause were as I remember Greuill Pyue and Hockam which being so found out was condignely also punished in some of the offendours both by perpetuall infamie and with other punishment CHAP. VII Wherein are conteyned answeres to such obiections and reasons as bee made for proofe of a contrarietie or repugnancie in these oathes vnto the statutes lawes or Customes of this Realme and a Replie to the Treatisors answeres made vnto certaine obiections supposed likely to be made in Iustification of this kinde of oath by the temporall lawes IN this Chapter I purpose God willing to answere those poynts which by the Treatisour or Note-gatherer are brought to perswade that such oath as here we handle is either plainely impugned or closely contraryed by the lawes temporall of this Realme Vnder this consideration doe fall certaine bare affirmations about this matter their reasons for this assertion and their answeres to such obiections as are by them supposed may be made in defense of this kinde of oath Among their bare affirmations about this matter I recken some things which they imagine to be sayde or practised by Ecclesiasticall Courtes or persons and that which they affirme the common lawe either holdeth or practiseth on the one side or els on the other side forbeareth to put in vse in this behalfe To the poynt of practise by persons and Courtes Ecclesiasticall are referred those the Treatisours imputations whereby he surmiseth generall oathes for all a mans thoughts wordes and workes to bee ministred by them and that vpon the Ecclesiasticall Iudges onely iealousie and suspition without any other lawfull inducement precedent Likewise that it is tendered in matters tending to losse of life or of limme All which I haue else-where shewed to bee very vntrue and slanderous Hither also is to be reduced another speech of the Treatisours for whereas the defenders of this oath doe affirme it as it is practised but not in such a catholike or vniuersall maner as he sporteth himselfe at to be warranted by the temporall lawes he saith that this is a foule sclander both to our lawes and to the Iustice of our land The trueth or falsehoode of which his fowle saying will appeare vpon perusall of the next precedent of this and of the next Chapters following And so will also these other his speeches to like purpose viz. where hee calleth it an alien heretofore entruded as a trouble some ghest into the house of our common wealth And where he saith that as Sir William Thorpe by his corrupt dealing so much as in him lay had broken the oath which the king is bound to keepe towards his people so the ecclesiasticall Iudges practising in their Courts and tribunall seates the selfe same vniust and vnlawfull maner of proceedings against the kings people coulde not escape the seuere sentence of lawe pronouncing them offensiue butchers and violatours of the king and iniurious dealers agaynst his Regalitie crowne and kingdome and so consequently c. in a Praemunire But for any testimonie of this corrupt dealing of Sir William Thorpes which here hee speaketh of or of his breaking of the kings oath and so seuere sentence of lawe passed in that respect against his butcherie and violation of the kings Regalitie c. though I haue sought for it yet can I not finde neither doth the Treatisour giue vs any direction for it His meaning herein though couered with slye wordes is easie to bee discerned through his vizard For if the oath were made by the king onely how could it bee broken by Thorpe and the king bee vnblameable for no man is simplie bound by oath to performe other mens integrities and seeing hee chargeth ecclesiasticall Iudges with the selfe same vniust and vnlawfull maner of proceeding though his conclusion drawen from the likenesse betwixt these cases be onely this videlicet that they are thereby fallen into Praemunire yet his very meaning and what conclusion was by him meant to haue followed thereon by the former part of the comparison is made apparant videlicet a couert disloyall and most lewde charge as if some now had no lesse broken the oath which they haue taken howbeit procured or induced thereunto by Iudges and Courtes ecclesiasticall But if such Ecclesiasticall Iudges haue neither indeuoured any such breach neither yet their practise of the oathe by him here condemned bee impugned by any
and matters Temporall betweene which and causes ecclesiasticall as is noted afore there was made both in those times and also long after a plaine seuerance and distinction in the groundes of their seuerall authorities and iurisdictions so that the one was called the Kings Court and the other a Spirituall or Court Christian. and therefore as nothing was in that Charter anewe graunted but confirmed onely vnto the Church of England so is it to be iudged on all handes that the king would not make lawes there to restraine the courses of proceeding ecclesiasticall because it could not be without disanulling and reuoking of that which immediately afore euen by the same Acte hee had first of all confirmed vnto them Secondly a Bailife onely is there mentioned which should put or not put a man to his oath which cannot well and properlie be vnderstood of any but of some officer temporall Thirdly these wordes are no way appliable to the practise of courtes ecclesiasticall for albeit vnder the name of Bailife an Ordinarie might be vnderstood which were very harsh insomuch as a Bailife is but a Reeue of a Baile or Libertie yet is it not holden by any lawe ecclesiasticall that vpon an Ordinaries owne bare saying whether he haue witnesses after to bee produced or not a man may bee put to an oath for there must bee some better matter of inducement to open way to the enquirie whereupon the oath ensueth Lastly this statute will rather hurt then helpe forward these mens purposes if an Ordinarie might here be vnderstood by a Baylife because if I conceiue the matter aright by this is implyed that so an Ordinarie be able to bring in good witnesses he may then vpon his bare saying put a man to his open lawe or to an oath But hereupon would followe that Criminall prosecution without any accuser or other partie and so ex officio mero yea and without any presentment too may bee lawfully admitted and which is most to our present purpose in handling that an oath in such case by him may bee imposed in any matter aswell Criminall as other For heere is no distinction made of any one kinde of cause from another and they which alledge it doe bring it to impugne proceeding by the defendants oath against crimes The allegation of the Treatisour out of the statute of Marlebridge or Marleborough falleth next in time to bee considered the whole wordes 1 Marlebr 52. H. 3. cap. 22. whereof are these none from hencefoorth may distreyne his freeholders to answere for their free holdes nor for any thing touching their freeholde without the kings writ nor shall cause his freeholders to sweare against their willes for no man may doe that without the kings commaundement But the Treatisour leaueth out the first part which sheweth howe the second that he alledgeth is to be vnderstoode And because like the lapwing with her diuerting c◅ies hee would leade vs further and further from the matter herein chiefly to be respected or for that he thought wee would make some aduantage hereof he saith that the kings commaundement importeth here thus much viz. according to the law Iustice of this Realme and for this quoteth a booke thus 2. R. 3. The booke he meaneth as I gesse is in 2 Mich. 2. R. 3. sol 11. these words wheresoeuer a man for offence misprision or otherwise is to make fine or redemption all the Iustices agreed that those Iustices before whome he was committed c. should take suretie and pledges for the fine c. and after by their discretion they should assesse the fine and not the king in his chamber nor otherwise before him but by his Iustices and so is the kings will in statute to be taken viz. by his Iustices and his lawe which to say in effect is all one c. Where you see that the booke speaking of Iustices viz. the men before whome the conuiction was made he referreth this to the Iustice of the land But though it be neither off nor on to our Principall purpose neuerthelesse it seemeth this booke is not truely applied by him vnto this statute and that by the kings commaundement in the statute the kings writ is to be vnderstood as in the first part of that statute is plainely expressed rather then any determination or Act of his Iustices of the Bench. Touching the statute it selfe the wordes doe euidently shew that neither oath in cause criminall nor any Court Ecclesiasticall is thereby meant there is onely forbidden that lords of manors shall not inforce their Freeholders that holde lande of them whether it be by distresse or oathes to answere in their Courtes baron touching the estates they haue in their landes because neither the lordes owne courts in such a case be competent or indifferent for feare of vnlawfull euiction nor the goodnesse or weakenesse of the states men holde are meete to be fished out by their owne oathes in satisfaction of their lordes greedinesse to haue their lands except the king by his writ shall so especially command And yet hereby wee see the statute leaueth it at large at the kings pleasure to warrant euen this course and therefore this is not simply vniust but inconuenient onely for lords so to vrge their tenants He alledgeth further against these oathes a statute as hee saith made 43. Ed. 3. ca. 9. that no man be put to answere without presentment before Iustice or matter of Record or by due proces or by writ originall after the ancient lawes of this land But I doe finde no such statute either in that yeere or in any other like number of Chapter of that king and that Parliament which he voucheth hath not so many Chapters But admitting it what is this to proue an vnlawfulnesse of oathes ministred vnto defendants in matters criminall whereof there is no shadowe of mention it rather speaketh of matters that ought to goe afore proceedings criminall at the common lawe and what makes this against Courts Ecclesiasticall woulde hee haue them to proceede in the selfe same maner that common lawe courts doe hee might aswell exact of them Indictments and afterward tryals by Iuries of twelue and yet Ecclesiasticall courts put none to answere but vpon moe then one of these or at least that which is equiualent at that lawe vnto these at the common lawe For first courts Ecclesiastical haue great vse of presentments and complaints or denunciations before the partie be called to answere as is shewed in the second part Then the defendant is not called neither but by due processe as by letters missiue or by attachment in Courtes of Commission by Primarie citation in Ordinarie Courtes which haue a correspondence vnto originall writs at the cōmon law So that of foure matters wherof some one or other of them is thereby required three of them be vsed in Ecclesiasticall proceedings against crymes His next proofe of this kinde cōming to be discussed is out of the 1 25.
taken but it was for that the Popes Collector who had in England no iurisdiction did conuent the said vicar afore him ecclesiastically at the suite of the Deane of Windsor for breaking his oath taken afore the sayd Collector to performe the condition of an obligation that he the said vicar had entred into which is a temporall cause What then doth this make against oathes imposed vpon defendants in some criminall causes For I trust though the Collector had vnlawfully imposed it the Treatisour will not thence reason thus mightily against vs viz. This was an imposed oath in a ciuill cause but it was vnlawfull therefore all imposed oathes in any criminall cause are also vnlawful For this reason is ex meris particularibus hath quatuor terminos besides is a fallacie of the Accident Seeing is was not therefore vnlawfull because it was imposed but vpon the other grounds alone Hitherto touching examples of oathes alledged out of the reports of the common lawe Now follow these reasons that are vsed as for a more direct condemnation by the common lawe of oathes imposed vpon defendants in some Criminall cases in which behalfe the Note-gatherer saith that nemo tenetur seipsum prodere is the common custome of England I will not greatly sticke with him herein so it be truely vnderstoode albeit this maxime being taken notoriously out of the Interpreters of Ciuill and Canon lawes I thinke he would haue much a doe to finde it by any booke of the common lawe to be the common custome of England It is true that when a man 's owne fault is secret and not any way bruted and published abroad he himselfe is not bound by lawe to make confession thereof to any Magistrate or officer Ciuill or Ecclesiasticall whether he be vrged to sweare thereupon or otherwise for in such case it is simply secret and the Magistrate except he shoulde minister a generall oath like vnto the Popish charge at shrift not warranted by any lawe cannot possibly in speciall or particular manner interrogate him of that whereof he neuer heard nor once dreamed But if a man be once discouered thereof by Presentment denunciation Fame or such like according to lawe then is not the fault simply secret but reuealed in some sort abroade or to the Magistrate who for auoyding scandall to Christian religion and for reformation of the partie may thus enquire of the offence to see it redressed and punished and therefore to the former maxima must be added thus much sed proditus per denunciationem Famam c. tenetur seipsum ostendere Any more exact or further discussing hereof is not of this place I doe 1 2. part ca. 6. 7 3. part ca. 9. therefore referre the reader to the places of this Apologie here quoted in the margent The onely case carying any shewe or colour of condemnation of oathes in any cause criminall at the course of proceeding by common law is alledged by the Treatisour out of the 2 Li. Assisar 4. 9. E. 3. Assis. 1. sol 316. booke of Assises there certaine returned of a Iurie being readie to be empanelled with others were challenged some of them for that it was supposed they had declared the right for the one partie and not for the other thereby as it were telling their verdict aforehand And othersome were challenged to be of Counsel or fee to the parties Nowe it is thereupon further reported that such of them as were in the first respect challenged were sworne to giue euidience to the Iurours and that it shall bee so in like case where the challenge sounds not in reproofe or dishonour of them but for those which were challenged that they had receiued money of the partie this challenge was tryed by the tryours without hauing any euidence by their owne oathes Causa qua supra whereby hee woulde gather that an oathe may not bee giuen in any cause at all where the parties owne honestie may be touched But he might with better reason haue gathered out of y e former part of this case the very contradictorie hereof because it is very small honestie for any man in some sort to offer himselfe to be sworne as an indifferent Iurour when he is indeede vnindifferent his iudgement so forestalled as that he hath taken vpon him to scan the right for the one partie before hee be sworne or haue heard the euidence for the other yet neuerthelesse these chalenged persons were put to giue euidence hereof to the Iurours vpon their corporall oathes Cōcerning the other persons chalenged to haue receiued some money or fee of the one partie that it was thought good that they should not be examined by oath hereof because it was a matter that might tend to their reproch and dishonestie cannot inferre this generall conclusion viz. that in no cause whatsoeuer a man may be put to an oath whereby his owne turpitude and dishonestie may be discouered For this was but in a particular point of challenge where the persons challenged were no defendants but came in to be Iurours a kinde of tryours and Iudges and against whome there was no lawfull inducement for the Iudges to impose such oath other then the challengers owne exception But that is not sufficient to cast ouer the clearing or proouing of the point obiected vpon him that is challenged and so from the challenger who by lawe is to come prepared and to make proofes of his owne intention which hee affirmeth because nemo praesumitur malus donec contrarium probetur and therefore the putting of the tryall of the challengers assertion here vnto the tryours was a fauour done vnto him by the Iudges more then the Ciuill lawes vsed abroad in other nations would haue admitted For he that will except must at his owne peril of loosing the aduantage thereof without any helpe of the Iudges office or of the parties owne oath be able to prooue his exceptions And therefore if this very case had bene in a Ciuill or in an Ecclesiasticall court that is guided by those two lawes the parties so challenged yea though they had bene Accusers or witnesses and much more being returned for Iurours who are a kinde of Recuperatores or Pedanei Iudices should not ne are bound to answere such exception touching their crimes vpon their owne oathes For further declaration of which point that when an answere in a criminall cause ought to be made by vertue of a mans oath and when it may be refused I referre you to the ninth Chapter of this third part So that the Iudges did herein very grauely considerately and but according to equitie and to the common lawe of all other ciuill nations The Treatisours next obiection to like purpose is out of Iudge 1 12. Reg. Eli. fol. 288. titul Periuric nu 51. Dyers booke and it is in the very booke it selfe thus worde for worde A bill of periurie was sued in the Chancerie as for periurie committed contra formam
statuti anno 5. Reginae nunc and it was doubted if the defendant would pleade not guiltie whether he should be sworne to his Plea and also to answere to Interrogatories as is vsed in the Starre-chamber And it was resolued by the opinion of Catline Dyer Saunders and Whiddon that hee should not be examined nor sworne vpon Interrogatories except the court of Chancerie had absolute authoritie and had vsed to examine periuries in that court before the Statute for then this is still reserued by the last Prouiso of the Statute as it is also for the Starre-chamber Otherwise if the court of Chancerie will examine periurie committed there as it may by Statute this must be by Latin Bill and bee pleaded in Latin and issue must be ioyned there to be tryed in the Kings Bench as in like cases is wont In this whole report as there is nothing that tendeth to the absolute impugnation of oathes in some causes criminall so is there not any point which we doe not willingly embrace and like of For the Chancerie being a court by the institution whereof to handle by Bill and answere in English no crimes but ciuilly laide and not criminally mooued to the intents of any punishment vnto which Bill the defendants must answere vpon their oathes therefore it is no marueile when by Statute any new authoritie is giuen therunto as in this case that then the course of the common lawe should be folowed except such Statute do otherwise determine But hereupon might well be gathered that defendants oathes to English Billes there alwayes vsed albeit criminall matters touching their shame and dishonestie be diduced and in other courts thereunto authorized the continuall vse of such oathes euen for crimes criminally mooued are no way against the Lawe of the land For we see that it is here yeelded to be lawfull in case the Chancerie had vsed such course afore Also that it is vsuall and lawfull in the Starre-chamber and that these Iudges opinions reach no further but that the partie accused of periurie should not be examined by oath vpon Interrogatories in the Chancerie for answering of Interrogatories vpon oath is not vsed there no not when the crime is but ciuilly prosecuted except the other partie will be contented to be wholy concluded by his aduersaries answeres that shall be so made to his Interrogatories Another case at the common lawe is alleaged by the 1 Notes tit the lawes of EnglaÌ„d Notegatherer thus It appeareth sayth he by the Lord Dyers booke that one Hinde being called before the Commissioners Ecclesiasticall for vsurie refused to sweare whereupon he was committed but vpon an Information in the common Pleas he had a Corpus cum causa to remoue him so as it seemeth that the Iudges were then of opinion that the Commissioners could not then giue them any such oath hereof he giues vs not any direction to finde out the particular place of this report All that I can to any such effect hit vpon is onely this marginall note viz. Simile M. 18. fol. per Hynde qui noluit iurare coram Iusticiarijs ecclesiasticis super articulos pro vsura so that if this be the place being but a Marginall note it can not necessarily be fathered as a Report of the Lord Dyers the rather because it is not likely that he would terme ecclesiastical Commissioners by the name of Iusticiarij ecclesiastici for the perfitnes thereof it might seeme rather to bee some note of the Notegatherers owne then any of Iudge Dyers gathering Secondly here is no mention of Hindes commitment nor of corpus cum causa nor that the sayd writ vpon information was graunted out of that court of common Pleas so that these bee but the Notegatherers owne surmises and gesses Thirdly before it might bee inferred thereof that the Iustices then were of opinion that Commissioners Ecclesiasticall might not giue any oathe in a matter of vsurie and so by like reason as hâ—…e gathereth in none other criminall cause this case in the Margent must first bee made like vnto that case which is in the text it selfe Nowe that conteineth no more but that one Skrogges appearing before certaine speciall Commissioners by 〈◊〉 Maiestie appoynted to heare and determine the validitie of two seuerall Patents of an Office the one graunted to the sayd Skrogges and the other to Coleshill and refusing to make any other answere then a demurre vpon the Bill and to the Iurisdiction graunted them by that Commission and being committed to the Fleete for such contempt by the sayd Commissioners was neuerthelesse by a Corpus cum causa out of the common Pleas remooued from prison because he was a person belonging to that court and a necessarie member thereof But where doeth it appeare that this Hinde was likewise a member of that court Or howe can these be like cases when as in Skrogges cause none oath was vrged neither was the Plea betwixt him and Coleshill criminall as this was betwixt the office of the Commissioners and Hinde Or where may Hindes case at large be found in Michaelmas Terme 18. Eliz. seeing no such matter is in the L. Dyers reports of that yeere Or howe can it be made to appeare that the Commission Ecclesiasticall was then perused the Statute whereon it is grounded considered of the whole matter argued and debated any such opinions yeelded or yet that Hinde was not by the court sent backe againe to prison though it were admitted he had once such writ as many other in like cases before and since that time haue bene for all the similitude which that Note mentioneth might rest in this one onely point viz. that as the one being committed for contempt by vertue of the Queenes speciall Commission had notwithstanding his writ of Corpus cum causa so the other had it likewise graunted But there might also be in the eighteenth yeere of her Maiestie other good cause to deliuer Hinde clearely out of prison being called before the Commissioners into question for vsurie if it were not aboue tenne in the hundred and yet oathes in any criminall cause besides ministred by Commissioners Ecclesiasticall shall be no whit thereby impeached or preiudiced because afore that viz. in the thirteenth yeere of the Reigne of her Maiestie a 1 〈◊〉 Eliz. ca. 8. Statute was made forbidding any punishment then that which is conteined in that Acte to bee inflicted by lawes Ecclesiasticall vpon vsurers so their vsurie amount not aboue the rate of ten in the hundred for one yeere therefore it might well haue bene that Hinde was so deliuered from his commitment not in respect of any vnlawfulnes by the Iudges deemed to be in such oath but for that y e conysance punishment of his crime by reason of that Statute belonged not then and in that case to an Ecclesiasticall Court This point the Treatisour further enforceth also by the formes of a peece of a precedent of a prohibition and another of Attachment thereupon
layde downe in the printed Register especially by these wordes of them Recognitiones sacramenta provoluntate sua ipsis inuitis For full answere whereof to auoyde vnnecessarie length and vaine repetition I must referre the Reader ouer vnto the xj and xij Chapters in the first parte of this Apologie He affirmeth also that the practisers of such oathes are for that cause in a Pramunire and therefore gathereth the oathe to be contrary and repugnant to the common lawe I graunt the consequence to be good and sound but how doth hee prooue them to be thereupon in a Praemunire For proofe of this he assumeth that this manner of oathe is contrary to the Queenes regalitie and crowne as if his reasons afore brought had sufficiently euinced so much which wee doe vtterly and resolutely deny vnto him And yet as if he had fully cleared that point he addresseth himselfe to prooue that whereof there was lesse controuersie viz. that what is done by a Bishop or by an Ecclesiasticall Court against the Kings regalitie and crowne hath beene heretofore adiudged to be within the compasse of this worde Alibi contained in the Statute of Praemuuire 16. Ric. 2. For this he alledgeth two books of the common law yet 1 5. Ed. 4. sol 6. Praemunire the first of them doth but speake of an excommunication by a Bishop not of euery dealing whatsoeuer in a matter belonging to the Kings regalitie And what if it had beene twise so adiudged both of them in such corrupt times when as the royall prerogatiue of the Kings of this land to be Supreme Gouernours in all Iurisdiction Ecclesiasticall due to them in right and by Gods Lawe was not de facto vnited to the crowne For the Bishops then did not claime their Iurisdictions Ecclesiasticall next and immediately vnder God from the Crowne as now they doe But seeing this parte of Regall power is nowe no lesse truely and fully vested in the crowne then is the Temporall so as the Lawes allowed for the gouernement Ecclesiasticall are termed by sundry Parliaments The Queenes Ecclesiastical lawes and Lawes of the Realme as well as those which were first and originally made heere And the Bishops are proued to haue their authoritie and Iurisdiction Ecclesiasticall deriued downe vnto them from the Queenes Highnes vnder the great Seale of England as vpon fundrie incident occasions hath beene shewed afore Is it then the like reason still to comprise their Iurisdictions and Courts vnder that word of Alibi as if their Courts and Iurisdictions were not nowe the Queenes nor yet belonging vnto her Regalitie Nay let such as shall so affirme beware they incurre not hereby the danger of implied if not direct denyall of a part of her Highnesse Royall stile and the breach also of their oathes taken for assistance and defence of all Prerogatiues c. vnited or belonging to this Imperiall crowne Yea and though this might be truely verified of ordinarie Courts Ecclesiasticall yet is there no colour at all so to affirme of the Commission Ecclesiasticall exercised vnder the great Seale of England by force of the same Statute that restores the Supremacie Ecclesiasticall to the Crowne I omit here what is touched else where viz. howe by sundry learned it hath bene thought that by Alibi there was encluded or meant nothing els but matters of that quality there specified which were enterprised by and vnder the Papall authoritie though the Pope perhaps resided not then at Rome it selfe Therefore seeing this is not pregnant ynough for him to driue this matter neerer home to his purpose hee sayeth it is against the Kings Regalitie and so a Praemunire for an Ecclesiasticall Court to holde plea of a matter appertaining to the Iudgement of a Common Lawe Court or to deale in any cause not belonging to Ecclesiasticall Iurisdiction The first of these he prooueth by the pardon sued by Barlow Bishop of Bathe and Welles in king Ed. 6. his time by reason hee had depriued the Deane there being a meere donatiue of the Kings If there were but any probable doubt whether thereby hee were fallen into a Praemunire it was wisedome for him to procure a pardon afore hand if he could Alealitis resincertissima yet depriuing of one placed by the King is much more then bare holding of some plea that appertaineth to a temporall Court besides that there was a further matter in it then I last here to open The other allegation of his to like ende taken from a 1 38. Ed. 3. of Prouisours Statute doth make no shew of proofe thereof for it is but thus viz. the King chiefly desireth to susteine his people in tranquilitie and peace and to gouerne according to the Lawes Usages and Franchises of his land as hee is bound by his oathe made at his coronation And are not Ecclesiasticall persons nowe parte of the Queenes people Are not the Liberties and Franchises that bee giuen and confirmed vnto them by the goodnesse of Princes for holding plea in certaine matters the vsages of this Realme Are not the receiued Lawes which lawfully they may practise termed Ecclesiasticall Lawes of this Realme no lesse then temporall be And is not the Prerogatiue royall in and for causes Ecclesiasticall as high and as rightfully setled in the Prince and incident to her Highnesse Crowne and Regalitie as the same is for temporall power and authoritie What cause is there then seeing seu Alibi in the Statute signifieth in true construction anie place whatsoeuer besides Rome that euery holding plea by an Ecclesiasticall Court of a matter wherein it ought not to holde shoulde at this time bee reckoned a thing contrarie to the Queeenes Regalitie more then dealing in an Ecclesiasticall cause shoulde bee in anie temporall Court at Westminster For no Statute of Prouision or Praemunire assigneth these for causes which haue indeede but growen since by collections whiles the Popes vsurpation was continued in this land against which oftentimes the remedie by Prohibition coulde not serue the turne I graunt it is a contempt or great misprision in any but for this a Prohibition and attachment thereupon c. as afore those Statutes they did might sufficiently serue the turne Neuerthelesse all these matters are wholly impertinent to his purpose till he shall haue prooued the particular issue viz. that such oathe as wee treate of is against the Queenes Regalitie c. But if that might be prooued then vpon so generall interpretation of Alibi these oathes would fall into the case of Praemunire by what Court soeuer whether temporall or Ecclesiasticall they should be tendered And that which he vowcheth to the same effect out of Saint Germans booke of Doctor Student receiueth the like answere In the next place I set some of the Treatisors reasons that are made by collection and discourse of reason These collections he maketh partly from examples past and partly at large therefore touching the first of these two he impugneth these oathes and would prooue
Temporall courts doe practise it yet is it contrary to an expresse lawe or certaine policie for else he sayth iust nothing to the purpose and yet he doth no lesse dutifully say it then he prooues it substantially euen out of the Ciuill lawe viz. ius non ex regula sumatur sed ex iure quod est regula fiat I pray yee who euer heard afore that regula here signifieth an example or a Precedent The true vnderstanding therefore of that part of Ciuill lawe is this when many cases runne one way so that for roundnes or better memories sake they haue bene by Iudicious men contriued into a summarie rule then whatsoeuer might be comprised vnder the generalitie of the words of such rule was not straight way to be reckoned for lawe because it is not possible in this great weaknesse of mans wit so to comprehend the lawe being to guide such infinite varietie of mens particular externall actions in a briefe rule as that it shall not haue sundry exceptions and limitations and therefore rarò est quin regula fallat And againe in this place non ex regula ius sumitur c. that is you can not conclude it necessarily to be lawe because you may apply vnto it some rule of lawe but because the lawe runneth accordingly in sundry cases you may therefore conueniently drawe them into a short rule which some doe call maximes in lawe yet abusiuely Thirdly he sayth to this obiection that by better Logicke we might conclude thus viz. because in these two courts answeres bee put in vpon oath therefore the same may be vsed in the Kings Bench and common Pleas which neuerthelesse were an absurde conclusion No Sir it is so farre from better that it is not any Logicke at all so to conclude except you adde more vnto it for if you could truely adde that the Kings Bench and common Pleas had time out of minde vsed that course for answeres to Billes in crimes not capital nor tending to mutilation of limme which may be verified of courts Ecclesiasticall besides the direction of that lawe by which they proceede then with very good Logicke might you conclude thus the same course hath time out of minde bene vsed in all those courts and it is not vniust nor cruell c. in the one and therefore not in the other for the diuersitie of places where they sit nor diuersitie of persons which doe sit as Iudges nor any other like circumstance cannot make a matter iust and equall if in his owne nature and simply it were vniust cruell or barbarous as this is often by him and others challenged to be Fourthly he sayth that in the Starre-chamber there is a bill of complaint formerly exhibited and so be there Articles in an Ecclesiasticall court Fiftly that there is also a knowen accuser Not alwayes an accuser for the office or common Interest of the Prince whose the court is oftentimes is there excited stirred vp by her Maiesties Atturney or Solicitour without any danger of them to be punished or condemned in charges though the matter should not fall out fully against the defendants euen as it is in courtes Ecclesiasticall when they proceede of Office albeit these more often proceede hauing a priuate Prosecutour especially in the court of Commission then they doe ex mero officio Sixtly that in the Starre-chamber they haue a copie of the complaint yet he himselfe doeth limit it thus viz. so it be not ore tenus Well then vpon some good occasion it is none vniustice though the defendant want a copie altogether of the matter obiected but in all ordinarie courts and in the Commission Ecclesiasticall at the furthest when they haue answered the articles they haue copies of them Seuenthly in the Starre-chamber the defendants are allowed counsell in answering the Bill and yet when this is ore tenus he knoweth they cannot haue counsell neither are they there alowed any counsell for answering to Interrogatories nor yet to haue a copy of them til they haue fully answered to them which Interrogatories vpon crimes in that court haue a correspondence vnto articles criminall preferred in Ecclesiasticall courts Lastly sayth he in the Starre-chamber if the Interrogatories be impertinent the defendant without offence may refuse to answere them and so may he refuse also to answere such articles in an Ecclesiasticall court But who shall then iudge whether they be impertinent or not shall the partie himselfe no verily but as it is in the Starre-chamber the court it selfe or else some of them that are skilfull in lawe being thereunto required by the rest Whereupon what great difference there is in any circumstance much lesse in matter of substance betwixt the proceedings in these courtes may easily be considered howsoeuer he doe largely conclude thereupon after his olde maner that there be mightie and great dissimilitudes For in his conclusion hereof he encludeth also other differences more bitterly and not spoken of at all in any his premisses whereupon he inferreth it albeit that such his additions be also very vntrue as that Ecclesiasticall courts giue oathes without all course of iudgement that the oathes there are made suddenly without all discretion vpon vncertaine demaunds that their oathes doe foolishly wander at the doubtfull will of a subtil and slye opposer and that the oathe in Ecclesiasticall courtes constraineth the reuealing of wordes deedes and thoughts though neuer offensiue to any Belike then where others be offended he mindes and will not sticke to allowe vnto those courts the ministring euen of these generall oathes which he so often besides the purpose harpeth vpon Let vs then lay aside these imputations being vtterly vntrue which hee coucheth together in his conclusion made of this point viz. concerning the like course obiected to be vsed in the Starre-chamber what then doe all or any the former differences of proceeding by him noted betwixt the Starre-chamber and courts Ecclesiasticall make to prooue the vnlawfulnesse of ministring an oath in a criminall cause which is the matter onely in issue here betwixt vs yea though they were admitted to bee indeede differences which is shewed to bee farre otherwise For albeit these courts should differ in many other points yet such difference cannot prooue an equitie to bee in the very like oath when it is vsed in the Starre-chamber and an iniquitie to be in it when an Ecclesiasticall court doeth in the like case minister it Truely he might out of those differences as wel conclude thus the Starre-chamber is kept and the oath is ministred at Westminster and they haue in that court but three or foure Atturneys therefore the very like oath ministred in the Consistorie at Paules where there be a dozen Procurators sometimes present is vniust and vnequall This therefore falleth into that point which in the Epistle to the Reader I affirmed to be his sophisticall answering of obiections He also doubteth that the Statute authorizing the attaching of heretikes by Ordinaries made 2.
H. 4. ca. 15. which he termeth the twise damned and repealed Statute and a bloody and boyling lawe will be alleaged for proofe of these oathes In trueth wee should be brought to a very straite exigend if we were forced as he is to runne vnto such repealed statutes for proofe of any principall point in controuersie Yet let vs see howe he assayeth to vntye this knot which he doeth two wayes First he sayth it appeareth not that thereby any authoritie was giuen to impose any such generall oath if then no such thing appeare why doth the Notegatherer so confidently Repugnancie betweene the Treatisour and Note-gatherer and so often affirme that this oath was then first brought in and established and therefore hee calleth that the statute ex officio though ex officio or oath be not once named there thereby confounding the very course of proceeding with that one Act thereof viz. of ministring an oath The Treatisour goeth further and sayth it appeareth not that any authoritie was thereby giuen to compell by oath the prisoner to become his owne Accuser for that and especially in causes of life and death had bene against the lawes and iustice of the land By which restraint in this worde especially he seemeth little lesse then to yeelde that in other cases not capitall this oath is not against the lawes nor iustice of the land But it is very vntrue to thinke that whatsoeuer is wholly forborne in Temporal courts should therfore straight way be accounted to be against them For there is great difference betwixt not vsing or forbearing and plaine forbidding of a thing to be done Furthermore we are commanded in 1 1. Pet. ca. 3. ver 15. Scripture to be ready to giue an account to euery one that asketh vs a reason of the hope that is in vs with meeknes and feare If to euery one much more to a Magistrate What then if he hauing also authoritie to impose oathes will exact it in this case may he not as lawfully doe it as without oath he may aske and interrogate the partie Nowe it is no more lawfull before God for vs being but asked of our fayth or hope euen by a priuate man to dally with him or to say vntruly though it might saue our life then wee may say vntruly when wee be sworne to tell the trueth thereof vnto a Magistrate 2 Ecclesiast 4. ver 30. doe not gaine say the trueth in any case saith the wiseman and againe be 3 Ecclesiast 41. ver 21. ashamed of vntrueth before a Magistrate or a man in authoritie So that hereupon it may seeme to be against Gods lawe to set any man at libertie from answering truely touching his fayth and hope and so in heresie when howe and by whomsoeuer he shal be interrogated yea though danger of death might ensue thereby vnto him His second answere to that statute is that if this oath be implyed vnder the worde of Canonicall sanctions mentioned in that statute then was it no binding law nor gaue sufficient authoritie c. because all lawes of man repugnant to the lawe of God are meerely voyd Where he assumeth as graunted that this oath is repugnant to Gods law which shal God willing be prooued far otherwise The last point which to this purpose he supposeth wil be obiected is that the kings heretofore haue graunted Commissions to examine by oath This he thinketh cannot be prooued and though it could yet sayth he such Commissions are against law and therefore voyde Therefore vntill they be prooued to be herein against lawe this answere will fall to nought and the obiection will remaine till then good and sound And so I ende this tedious Chapter made in answer of all that which I finde brought for proofe that these oathes whereof we argue should be contrarie or repugnant vnto the statutes common lawe or customes of this Realme CHAP. VIII That ministring of such oathes is by the Lawes of the Realme allowed vnto Iudges of Ecclesiasticall courts and some fewe obiections made to the contrary are answered THat the lawes of the Realme allowe it vnto courts Ecclesiasticall which point comes next to be declared these few allegatiōs folowing may suffice 1 〈◊〉 H. 5. ca. 〈◊〉 Ordinaries are authorized to enquire of the foundation estate and gouernance of Hospitals being not of the Kings foundation and of all other matters necessarie in that behalfe and vpon that to make correction and reformation howe after the lawes of holy Church as to them belongeth Now by those lawes Enquirie touching crimes not capitall is made by the defendants oath as in the next Chapter folowing is declared So that if any such faultes be the persons visited are to discouer them vpon their oathes which cannot be entended but that they may be criminall and penall to them selues because the statute sayth that they are to be corrected and reformed If 2 Clerkes be conuicted before Ordinaries of incontinency by examination and by other lawfull proofe requisite by the lawes of holy Church they may be committed to ward But it is shewed afore that examination euen at the cōmon law like as at the Ecclesiasticall is vpon oath So that such oath is by the iudgment of that statute deemed a lawfull proofe requisite by the lawes of holy Church Executors 1 21. H. 8. ca. 5. administrators must giue oath before Ordinaries of the trueth of such Inuentaries as they doe exhibite Yet this may implye in it either periurie or some discouery of a mans owne fault if he haue dealt therein corruptly and fraudulently And another 2 27. H. 8. ca. 10. statute though standing repealed yet giueth good testimonie that not onely Enquirie at an Ordinaries visitation but also that the parties owne examination of whome the enquirie criminall ex officio is made is holden for a due course of the lawe ecclesiasticall not disallowed of by the lawes of the Realme And such examination is done by oath according both to that lawe and to the Temporall in like behalfe as hath bene shewed out of Iustice Brookes abridgement Moreouer 3 1. Eliz. ca. 2. Ordinaries are authorized to enquire to punish c. the violation of the Act made for vniformity of common prayer howe euen as heretofore hath bene vsed in like cases by the Queenes ecclesiasticall lawes But such enquirie generall is prescribed and so was alwayes practised by the oathes of men and the enquirie speciall is and was vsed by the defendants owne oath in case he should stand in deniall The oath of 4 5. Eliz. ca. 1. Supremacie may be giuen ex officio by any Ordinarie to a Clerke being within his iurisdiction yet if such Clerke doe cary a contrary perswasion it vrgeth him to reueale and discouer himselfe and his erroneous opinion by refusall of the oath or els to be foresworne which if he list not to be but rather refuse then falleth he thereby into a Praemunire which
contrary to any the lawes or policie of this land Let 1 Constit proude haereticis c nullus no man saith that Constitution presume to dispute c. against othes which are made either in Ecclesiasticall or temporall Courtes in cases accustomed and in vsuall manner c. and from henceforth let it be commonly taught and preached that oathes may lawfully be taken by all to whom it appertaineth by touching the holie Gospels and vpon them in all cases by law expressed and which are vsual in both courts Seeing then it is most apparant that the oathes which wee here dispute of are both expressed and prescribed by lawes Ciuil and Ecclesiasticall and were also there vsed both at the very time of such Constitution and long afore it wil hereupon follow that the like oaths were then also vsed in temporall Courts and were by that Constitution aswel alowed vnto Ecclesiasticall courts as they were in their owne temporall courts Which thing is so much the more manifest in that a little Treatise purposely compiled I take it by Saint German in the time of king Hen. 8. euen against sundry such Constitutions both Legatine and Prouinciall yet saith thus of this very point viz. 2 A Treatise concerning Constit. Prouinciall and Legatine ca. 23. printed by Tho. Godfrey though such a mans saying viz against vsuall othes in both courts be vntrue yet it is none heresie He yeeldeth then that in all cases then accustomed in both courts othes might lawfully and also ought to be taken The practise of this oathe as in all former times so was it also receiued and vsed in the time of king Henry the eight as well after the Papacie was ouerthrowne heere as afore and so hath it continued euer since And after his time the 3 Actes and Mon. 2. edit 2. tom fol. 1495. Lords of the Counsell finding Bonner thē B. of London somthing slack in his duty did enioine him to cal afore him al refusers to come to diuine seruice to search out conuent punish al adulterers according to the ecclesiasticall lawes The 1 Ibid. fol. 1501. kings commissioners visiting the Church of Paules did examine al thē of that church by vertue of their oathe touching their doctrine and conuersation of life Wherevpon one Iohn Painter and others did confesse adulterie euen by themselues to haue bene committed yet this was a generall enquirie The Kings 2 Ibid. fol. 1511. commission to proceed against Bonner affirmeth that the commissioner shal proceed aswel by meere office as also by way of denūciation by either of thē or by any other means by their discretions By vertue 3 Ibid. fol. 1512. whereof they charged him w t a corporal oath ex officio in form of law to answer the positiōs that shuld be ministred which vpon his oath takē were after ministred vnto him But 4 Ibid. fol. 1516. for that he would not answer them fully he was pronounced contumax pro confesso was remaunded backe to prison as afore The 5 Ibid. fol. 1536. proceedings about that time also against Ste. Gardiner the oath ministred to him was ex officio in matters criminal penall as appeareth by the sentence of depriuation from his Bishopricke of Winchester And yet besides Bishops there were some of the Kings counsell some Ciuilians and also some Iudges of the land and other common lawyers who were then commissioners in that cause and knewe the lawes as sufficiently well as any doth which now impugneth this course In her 6 Circa 3. aut 4. regni domninae Elizabethae reginae Maiesties time that now is a special cōmission was directed forth by her highnes vnto certaine great persons both ecclesiastical lay wherof diuers were of the priuy counsel to proceed by way of enquiry ex officio against 2. great honorable personages in a cause of correction for incontinency for so the commission did runne Whereupon they were accordingly called and proceeded with and were put to answer the criminal articles vpon their corporal oaths Not onely at all general visitations holden in the beginning of her Maiesties reigne by speciall commissions grounded vpon the stat 1. El. c. 1. but also euer since by vertue of the commissiōs ecclesiastical this course of exacting such oaths hath bin practised and continued was it then so long together against papists and other delinquēis a most iust necessary oath such as against which no good subiect bearing the name of a professor of the gospel euer did open his mouth in any dislike and is it now become on a sodain a bloudy cruel vniust more then Spanish Inquisition bicause a few vaine factious Reformatists are vrged with the selfe same maner of oath Belike lawes themselues are but partial which in respect of acception of some mens persons doe so quickely turne their nature from sweete to sower and from iust to vniust When D. Grindal late Archb. of Canterb. was B. of London he cōplained to the Lords others of her Ma. most honorable priuy coūsel for that by vertue of the cōmission ecclesiastical he could not so duly thorowly proceed to the discouery punishment of certaine knights other great possessioners being Recusants as he ought because som Ciuilians common lawyers supposed thē by him to be like affected did sinisterly animate and aduise them not to take oath to answer vnto any articles obiected ex officio vnlesse some fame by presentment or such like were first found against thē which would proue said the B. a long troublesome and chargeable course if it should be pursued seing some of thē dwelt in remote places of the Realme where as the people also stood like affected so that they would neuer be induced to make any such presentment or discouery and yet that the matter was by denunciations by vehement presumptions and by good euidence giuen vnto the commissioners sufficiently otherwise detected or was so notorious as that by lawe they might ground an Enquiry of office against thē as by others no lesse sound Lawyers he was informed For redresse whereof and for furtherance of Iustice it pleased their honorable LL. to cal som both of the Ciuilians cōmon lawyers afore thē to the Counsel boord that had giuen such aduise thereupon three of the doctors and one counsellor at law were by thē cōmitted to the Fleet. which I think some of their honorable LL. others yet remaining can do wel remember By al which here premised it doth appeare how sufficiently manifoldly our intention in this behalf is grounded likewise to how smal purpose the Treatisor resoneth where he gathereth that ecclesiast courts must be restrained by the Q. prerogatiue roial common lawes in that their iurisdiction is from the Crown Considering none of the defenders of this oath wil deny either the antecedent or consequence hereof But that which couertly he would thēce inferre
some one though otherwise learned godly misliked happely vpon some particular occasion or vpō priuate pique of humor that thereupon the thing it selfe should be simply condemned and if the condemnation by one haue any such great force I hope the allowance thereof by many and the manifold reasons which commend the lawfulnesse and necestie of it will be of much more force then one mans breath and bare saying can be Now follow the Note-gatherers quotations of diuines against this oath how beit without any allegation set downe But first let vs speake of those which are from the ancient Fathers In the treatise of 1 Origen in 5. Matth. tract 35. Origen which he quoteth I find two sayings touching oaths the one of which it is likely he meant Indeed we find saith Origen in the law the vse of Adiuring as in the booke of 2 Num. 5. V. 19. Numbers and in the booke 3 1. Reg. 2. V. 16. of Kings but I am of opinion that a man which will liue according to the Gospell ought not to adiure another for not to adiure at all is like to that commandement of the Lord himselfe in the gospell thou shalt not sweare at all And againe it had not beene seemly that the Lord vpon the adiuration of the high priest should haue answered him as though he had bene thereunto compelled against his owne will and therefore he neither denied himselfe to bee the Christ the sonne of God nor yet plainely confessed it But if here by adiuring be meant all vrging of any other to sweare in what cause soeuer whether it be by a Magistrate or by a priuate person for a priuate or a publike cause in iudgement or out of iudgement as the first of them by the generalitie of the wordes may import then doth this saying condemne all oathes simply other then such as bee voluntarily taken no lesse then it doth those oaths that are imposed touching a mans owne crime whereof we speake so that in such an vnderstanding the Note-gatherer himselfe I trust will not allow it least both his owne and the iudgement also that hee imputeth to Origen be both touched with a spice of Anabaptisme Therfore for clearing of Origen and also some other of the fathers hereafter by occasion of his quotations to be alledged frō so foule an error and from contrariety also vnto themselues in other places the generalitie of certaine their speeches as it were in an absolute condemnatiō of oaths as might seem at first sight must be all of them restrained either vnto accustomable vaine swearing which men vse in common talke or else to the exacting and driuing of defendants to sweare to wage their lawe by necessary decisory and iudiciall oaths for a trifling peece of mony or goods notwithstāding the plaintife perfitly knoweth asorehād that if the defendant take it hee is thereby induced into periury Or lastly vnto rash vnaduised oths or not being in y e takers power to perform That al their speeches seeming absolutely to cōdemne al oths ought none otherwise to be vnderstood you shall haue cleare testimonies frō themselues euen in those very places for y e most part that be quoted by y e Note-gatherer So far is it of that any of them directeth his speeches against this kind of oath that we defend Now then for the clearing of the first point that is to say that diuers of such their Inuectiues are directed against vaine and customable swearing in common talke Saint 1 Aug. Ser. de decoll S. Ioan. B. p. Ser. 10. Augustine sayeth it is no sinne to sweare truely but in that it is agreeuous sinne to sweare that which is false no doubt hee is farre from the sinne of periurie who sweareth not at all Saint Chrysostome who in euery of his Homilies almost to the people of Antioch is most earnest against swearing insomuch as in one place he 2 Chrys. Homil. 15 ad pop Antioch saith the nature of an oath is to pierce further and more dangerously then a sword yet he she weth how his speeches thereof in part are to be expounded and that he doth not condemne all oathes simply which absurditie the Note-gatherer must first yeeld vnto before he can make one droppe of that his own thick myst of quotatiōs to serue the turn that he entēdeth It is no masterie saith 3 Chrys. Homil. 4. in sine ad pop Antioch Chrysostome to ouercome the custome of swearing if we will but affoord a little indeuour to that ende And a little afore that thus Cast out of your mouths that wicked custome of swearing And elsewhere to like purpose an oath sayth he hath this euill in it that whether it be broken or kept it maketh a man subiect to punishment But that he heere meaneth only the priuate custome of swearing appeareth by the reason added for 4 Idem hom 14. the continuall swearer sometimes willingly sometimes vnwillingly sometimes when he knoweth it sometimes when he knoweth it not when he speaketh in earnest and when he speaketh in iest ofientimes being carried away by anger or other perturbation can not choose but for sweare himselfe withall To the second point viz. that their meaning else-where is of waging lawe by Iudiciall and decisorie oathes tendered by priuate men abou◅ debts and chattels when by such oathe the party to sweare is most likely to be forsworne First 5 Athan de pass crace Dom. col 3. Athanasius saith Let your yea be yea and your nay nay thus farre we that be Christians may confirme our speeches but let vs not proceede so far as to flie vnto oaths and to call God vnto witnes for corruptible moneis sake And in that sense is it to be taken which hee saieth a little after men do 6 Athan. Ibidem not sweare only for worldly busines sake ◅ut rather to cōfirme truth and to shew that which they say to be voyd of falshood therfore if he that sweareth be true and to be trusted what need is there of his oathe but if he be not to be trusted why do we commit such wickednes as that for wretched and mortall mens cause we should call God who is aboue all vnto witnes S. 1 Chry. Hom. 15. ad pop Antioch Chrysostome also saith thus in this behalfe Let vs not driue our brethren to an oathe O man dost thou know what thou dost herein in that thou makest him sweare vpon the holy table where Christ offered vp is laide wilt thou euen there sacrifice thy brother And againe it 2 Idem hom 16. is better that we lost our mony then to offer our brother an oathe that he had it not from vs or owes it not vnto vs. Likewise if a man say vnto me saieth 3 Chrys. hom 26. ad pop Antioch hee take thine oathe let him heare that Christ hath forbidden it and so I shall not neede to sweare But how this is meant
AN APOLOGIE FOR SVNDRIE PROCEEDINGS by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuersly by them impugned By which Apologie in their seuerall due places all the Reasons and Allegations set downe as well in a Treatise as in certaine Notes that goe from hand to hand both against proceeding ex Officio and against Oaths ministred to parties in causes criminall are also examined and answered Vpon that occasion lately reuiewed and much enlarged aboue the first priuate proiect and now published being diuided into three partes the first part whereof chieflie sheweth what matters be incident to Ecclesiasticall conisance and so allowed by Statutes and Common law the second treateth for the most part of the two wayes of proceeding in causes Criminal viz. by way of Accusation ex officio Iudicis the third concerneth Oaths in generall but more specially the lawfulnesse of such as be ministred touching supposed offenses either of themselues that sweare or of their brethren Respectiuelie submitted to the graue iudgements of the reuerend Iudges and other Sages of the Common lawe of Iudicious Professors of the Ciuill lawe and of the right reucrend Prelates and other grounded Diuines in this Realme Whereunto for the learneds sake and for similitude of Argument and Iudgement I haue presumed to adioine that right excellent and sound determination concerning Oaths which was made by M. LANCELOT ANDROVVES Doctor in Diuinitie in the common Diuinitie Schoole of the Uniuersitie of Cambridge in Iulie An. 1591. Lex iustitiae Iustitia Reipub. basis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie THE GENERALL Preface conteining the Occasion and generall distribution of this Treatise following before it was meant to make it publike THE indeuours of such disturbers as haue bene the chiefest staies of a further propagation of the Gospell and the onely staines of her Maiesties happie reformation haue rested most in aduancing a new found discipline in discrediting the present gouernement Ecclesiasticall by their speeches and writings The later whereof they haue gone about as well by impugning the callings and forme of gouernement Ecclesiasticall as if they were contrary to Gods word as also by defacing the persons of the Gouernours with vnchristian gibes contumelies and other indignities But these succeeding not to their wish nor sorting to that effect they purposed sundry of thē haue entred into pursued a more politike course for by thēselues others more simple excited cunningly by them they chalenge diuers receiued proceedings in Courts Ecclesiasticall not to bee iustifiable by lawe pretending now their especiall griefe to rest herein for that they are delt with and oppressed contrary to law euen as if they did carie a principall and zealous care to haue all her Maiesties lawes dulie obserued By whose frequent clamours some very graue wise and learned no way affected to their other fansies either not being well informed of proceedings Ecclesiasticall or not weying for want of leisure certain points seeming to bee doubtfully reported in the bookes of Common lawe so throughly as their great learning therein doeth affoord in a kind of commiseration for so I interprete it towards some of those who seeme distressed and to be otherwise well meaning men haue lately called into question diuers proceedings Ecclesiastical both for matter and for circumstance or maner that they are contrary to the lawes of this Realme Yet all of them doe not iumpe in the selfe same opinions hereafter touched For they are seuerally holden by seuerall men the most whereof are stood in by men of meanest place and reckoning in that studie and such as are knowen to bee ouermuch addicted to factious innouations But all the chalenges whatsoeuer for contrarietie vnto the lawes of the realme only so farre foorth as they are hitherto commen to knowledge may fitly be reduced into this order summe They tende to the chalenging of proceedings Ecclesiasticall done either by those who proceed by her Maiesties immediate Commission who are either Iudges delegates dealing in matters onely betwixt partie and partie brought before them by appellation or Commissioners in causes Ecclesiasticall seruing especially for punishing of crimes offences or els such as be executed by those who deale in ordinary iurisdiction The exceptions that touch the very matter and obiect of Ecclesiasticall iurisdiction do in very deed by necessarie consequence tend either to the whole taking away of the Ordinarie iurisdiction as where it is affirmed that no Canon constitution nor ordinance prouinciall whatsoeuer may now be put in vre without her Maiesties expresse assent first had to execute the same or els do reach to the taking of it away but in part Those opinions that tend to the abridging of it but in some part doe goe about it partly by way of excluding Ecclesiasticall Iudges from the handling of certeine matters as by holding that none Ordinarie may cite any whomesoeuer but in causes Testamentarie and Matrimoniall and that no Lay man ought to be cited or summoned to appeare before any Iudge Ecclesiasticall to take an oath in any other cause then Testamentarie or Matrimoniall And partly by deriuing them from the conisance Ecclesiasticall vnto other Courts as that the iudgement of heresie now lieth rather in the Common law then in the law Ecclesiasticall and some other of them being defended by the same men that holde the next precedent opinion doe tend both to the excluding of Courts Ecclesiasticall and to the diuerting of such causes another way as that nothing now can be adiudged heresie but according to the statute 1. Eliz. cap. 1. As for the exceptions pretended to be taken from the lawes of the Realme against the circumstances or maner of proceeding in courts Ecclesiasticall they do either concerne such points as goe afore and are preparatories to the suite such is this that the Queenes Maiestie cannot giue nor any man receiue authoritie to vse any other processe in matters Ecclesiasticall then by citation Or do touch the maner of entring into the suite as that an Ecclesiasticall Court may not proceed without accusation or presentment and that Lay men may not be cited ex officio in any cause but Testamentarie or Matrimoniall Or they concerne the maner of handling and proceeding in the suite as that If a matter be duely presented against a man he may not be examined vpon his oath whereunto some belike meaning to qualifie and distinguish it do adde this viz. in a matter of incontinencie or such cause and that no man is bound to declare any matter against another except some be an accuser Or do concerne the sentence or iudgement of the Court Ecclesiasticall as that by none Ecclesiasticall authoritie a man may be depriued of his benefice being his freeholde being not endited and no suite of partie offered against him Or els doe touch the execution of the iudgement as that the Q. Maiestie cannot giue nor any man may take authority of
her to vse any coërtion for any matter Ecclesiasticall but excōmunications such like and that therefore a man may not be punished by imprisonment or fine for or in any matter Ecclesiasticall and lastly that a man that standeth aboue fortie dayes excommunicate may no way be punished but vpon the writ De excommunicato capiendo and that the said writ may not be awarded but vpon originall cause arising vpon some of the ten crimes touched in the stat 5. El. c. 23. But others that be indeed professed dealers for an innouation in the Church when they are conuented before authority not only do most greedily take hold of these exceptions pretended to be taken from the Common law against iurisdiction Ecclesiasticall but do allege also sundry others yet pretending to ground themselues for both not alonely vpon the lawes of the realme as those do of whom we hitherto haue spoken but vpon Gods law also the Ciuill the Canon or Ecclesiasticall law and vpon equitie and reason Not because they were persuaded by the pregnancy of any of these so to thinke but hauing embarked themselues in that common quarrell viz. to impugne the gouernment Ecclesiasticall of this Realme in all things to their vtmost haue first as is probable entred into the opinions and after haue sought some colour to vernish them ouer with wheresoeuer they could hit of it Which their exceptions peculiarly framed by the professed Innouatours and their owne proofs both for them and for these also afore recited which were put into their heads by some Lawyers shall God willing then be distributed layd forth when we come to the handling of them because other parts of this Treatise are more apt for that purpose then this generall Preface These opinions of late ringing sundry times in mine eares and seeming to me to be diuersly mistaken I called to memorie so nere as I could what and where I had read any thing touching them Whereupon turning some books and confusedly noting what I found I was more and more confirmed in my former conceits sufficient for mine owne persuasion Now because you pretend not to haue trauelled in these kinde of questions haue so earnestly importuned me to take some paines therein I haue bin content for your owne onely priuate reading satisfaction to plot my simple conceits into this order as you see For owing very much vnto you therefore not daring to deny you so small a matter I haue with y e litle leasure I could get hazarded rather to haue want of iudgement in me then lacke of good will by you to be censured Meaning in the first part of this Treatise to pursue the particular order heere aboue comprised sauing that those foure recited opinions which touch the circumstances of entring into a suite Ecclesiasticall and the maner of proceeding in it I shall be forced contrarie to the naturall methode to put after all the others as requiring seuerall handling and falling more fit in the second and third partes of this Treatise An Epistle to the Reader conteyning the occasion of the publication of this Apologie with a generall delineation of two Treatises written against the scope of some part of the same VPon occasion touched in the Preface going before gentle Reader I was about a yere three quarters since drawen to set downe this simple Apologeticall discourse ensuing albeit in very many places thereof nowe enlarged Which Treatise by him to whom it was addressed being then imparted vnto certaine others of honour and qualitie it is saide that they were also desirous to haue copies thereof for some considerations to themselues best knowen The booke was somewhat long and had many quotations so that it coulde not conueniently in any short time be written out truely and faire for so many as seemed earnestly to request it Hereupon it was then in priuate sort committed to the presse and fourtie copies or there abouts were printed without any purpose of further publishing It appeareth nowe that neere about the same time certaine Doctours of the Ciuill lawe required thereunto by some in authoritie did agree vpon a briefe schedule conteyning some groundes of ministring an oath of office in crimes punishable by Ordinaries and Ecclesiasticall Iurisdiction a matter referred but to priuate consideration and desired for like satisfaction onely This small schedule was after deliuered foorth by some to whose handes it came as the report went to be confuted by certaine Diuines and Ciuilians of either Vniuersitie and by certaine professing the Common lawe Sure it is that within foure moneths after a Treatise said to be penned against the purport and drift of that schedule by sundry holden wise not vnlearned to whose sight the written copies thereof were credited was most highly commended and extolled It seemed so precious that copies thereof though desired were made very rare and not vouchsafed to the vulgar and meaner sort but kept tanquam Cereris mysteria So that almost a yeere after knowledge of it had did passe ere it happened to come to my poore handes and that was by the meanes of a right noble Counsellour who had also much adoc to procure a copie thereof for himselfe That which came to my handes doeth carry this title viz. A briefe Treatise of Oathes exacted by Ordinaries and Ecclesiasticall Iudges to answere generally to all such Articles or interrogatories as pleaseth them to propound and of their forced and constreyned oathes ex officio wherein is prooued that the same are vnlawfull I was glad of this opportunitie offered for I hoped to be instructed in some important point that I had not afore considered of and either to be aright perswaded whereof I am most desirous if I had mistaken or else be confirmed in my former opinion For there was reason I should so be if in a booke drawne with so great aduise by men of such rare skill and dexteritie and so well digested I should not finde demonstratiue arguments euen to presse mine assent against the course as I tooke it of the lawes both Ciuill and Ecclesiasticall against the practice of all the other states of Christendome and against apparent approbation thereof by Gods booke it selfe But when I had first cursorily runne that Treatise ouer I must confesse I was partly drawne into cogitation that I had not hitte vpon the right booke because such is either my dulnesse or preiudice for I doe assure you I will not be opiniatiue against that which I may discerne to be well grounded reason or sounde authoritie that I stand yet as resolutely perswaded as afore this piece of worke notwithstāding And albeit I wanted both fitte occasion and iudged it also for the reasons hereafter touched not worthe the while to say any thing to the vnconcludency and imperfections which I conceiued to bee in that Treatise yet was I neuerthelesse not long since moued by those who may commaunde me to take some time to answere it Being signified withall from them vnto
me that it was otherwise fully meant to put mine aforesaide rawe discourse of these matters euen as it was vnto print againe to bee made publike Whereupon knowing this resolution and that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 might perhappes be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 I condescended to assaye whether I coulde as it were licke ouer my discourse againe into any more tolerable fashion not omitting withall to answere the whole matter of the aforesaid Treatise seeming to me any way pertinent yet not in the same order as it is there set downe but in seuerall places of my booke as it falleth in most aptly after the method into which I had first plotted it Of which whole Treatise I trust I may without offense giue you a generall taste by this Epistle Truely I neither doe knowe nor haue heard who were any of the Authors or who was the Enditer of it If therefore it should happen that I did vse some measure though farre scanted of that libertie of speeche which is vppe-mette pressed downe and running ouer in the Treatisour against many in place I doubt not his betters and of as great woorth and sufficiencie as himselfe euery way I hope that I shall not iustly be noted to be caried with sharpnesse of humour against any particular person but to haue beene prouoked vnto a moderate necessary and generall defence Albeit I purpose rather to waye what is fitte for vs to speake then for him to heare Vnto the whole matter of the Treatise these three seuerall pointes might haue sufficed for a generall answere The first is that the state of the controuersie or issue is by him mistaken the second concerneth his arguments for he assumeth that as graunted which is not which in the schooles is called a fallacie petitionis principij the last and third is his sophisticall answering euen to such obiections as him selfe frameth For the first therefore yee are to vnderstand that in the Treatise it selfe this seemeth to be the generall issue by him tendered against which he would argue viz. the forcing of oathes by Ordinaries and Iudges Ecclesiasticall generally to answere to all such questions or interrogatories as they shall demaund or minister touching either the thoughts words or deedes of him that is to depose Vnto which in the title is also added another challenge for that they are ministred of office by the Iudges So that he conceiueth erroniously all proceeding of office to be onely in causes Criminall and in this respect alone worthie to bee chalenged because it is done by the Iudge without prosecution of a partie Nowe if hee doe reason as hee pretendeth against some matter practiced by Iudges and lawes Ecclesiasticall in this Realme then by charging them with exacting of oathes for men generally to answere vnto all their thoughtes wordes and deedes that they shall be enquired of that I speake but mildely it is a very vntrue and slanderous imputation both to the men and to the Lawe it selfe If it were mistaken by him through ignorance yet was it ouer great rashnesse thus to speake euill of such as be in 1 Iudae ep V. 8. 9. authoritie especially for matters hee perfectly knoweth not But if it were wilfully done then must I needs say that he peruerted and wrested the matter in controuersie of set purpose to make the men and whole calling odious and thereby to giue the better tang in some mens tastes vnto those Cart-loads of contumelies and spitefull 2 The Latines call this calumniam the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 reproches wherewith throughout the whole Treatise it pleaseth him to charge both them and their proceedings as in part shall by and by appeare For the seconde point of the three hee first defineth an oathe then hee sayeth it is a part of Gods worship hee telleth the ende and institution of oathes by Gods Lawe and that they are either priuate or publicke hee sheweth the necessitie of it in some priuate suites and what things are to be obserued by him that taketh it and what by the Magistrate that giueth it likewise hee setteth downe yet but in part certaine cases how an oathe is vsed in some Temporall Courts and how it ought to be vsed as he saith by the Canon Law All which I will not greatly now trauerse with him But hereupon hee inferreth that the oathes ex Officio vsed in Ecclesiastical Courts are against Gods Lawe Common Lawe and the Canon Lawe it selfe So that if he minde to reason out of those premisses it must needes be gathered for him to this effect viz. In the Law of God in the Common and Canon Lawes we finde oathes thus and thus prescribed and vsed But the oathes ministred in Courtes Ecclesiasticall touching matters Criminal are cōtrary to this prescription and vse Ergo. They are contrary to those three Lawes I will omit that this reason concludeth not necessarily being ex meris particularibus because it might bee that though sundry othes by those three Lawes were in deede of such forme neuerthelesse other there may be also farre different and yet both sorts allowable But for answere I say that the Assumption or second proposition which must be vnderstoode is by the Treatiser not once mentioned much lesse vndertaken to be proued but is taken vp by him as graunted which in trueth is flatly by vs denied For it shall bee prooued God willing that there is no such contrarietie as is by him surmised no nor great diuersitie betwixt the othes there ministred and those which Scripture mentioneth or Common Lawe practiseth Now touching the last point of the three Hee maketh it as a sufficient answere vnto obiections that may be made for assertion of such othes as hee impugneth if hee can but note any difference betwixt the things resembled together though such diuersitie bee not in the point for which the comparison is made no nor in any other point that is materiall As for example If a man affirme that Christes second comming may bee compared to the comming of a thiefe in the night meaning for the secresie thereof and want of expectation should hee well confute this comparison that woulde thus say No Sir that is vntrue for there is a great diuersitie betwixt their commings because Christ commeth to deale iustly but a thiefe to doe vniustly But to come neerer home If I did argue thus viz. The receiued vse of the Starre-Chamber to deny men counsell when they answere to Interrogatories is not against the Rules of Iustice therefore no cause is there why the like approoued vse in the Chauncerie should be counted against Iustice I pray ye should he reason soundly against it that would answere it in this sort Oh Sir there is a great diuersitie betwixt those two Courtes for the one proceedeth Criminallie to inflict penalties for the Queene the other but Ciuillie for priuate amendes in equitie vnto the partie Or if hee shoulde answere thus The Lordes of the Counsell bee Iudges in the one
but not so in the other Considering that in all things being not the same there is diuersitie and yet a reason of comparison is concludent if there be no difference in the point for which it is brought If then the whole substance of that Treatise shall bee founde vpon discussing to labour of some of those three infirmities so that as himselfe affirmeth in the winding vp of all he might truely say hee hath vsed but fewe proofes I could therefore haue wished that hee had not shewed himselfe as Suffenus sibiipsi by setting the Garland vpon his owne head before the victorie where hee telleth vs that albeit his proofes by him brought be fewe yet saith he they are effectuall And thus much for the matter of that Treatise Now let vs here also consider the maner of penning and the briefe of the rest of his vnnecessarie wordes which are wholly besides the matter For the enditing surely I doe esteeme it for my part to be a very commendable easie and flowing if not ouerflowing stile Yet if I may be pardoned to speake freely that which I thinke truely it runneth altogether vpon an haughtie comptrolling contemptuous disdainefull and salte minerall veyne as may appeare by a taste of some particulars not vnfitte to bee opened which for order sake I will contriue into these fiue seuerall heades viz. 1. Of his discourteous and opprobrious termes vsed against sundrye particular persons and callings 2. His couert reproching and wounding of all Ecclesiasticall Iudges through the sides of Papists for their raging against Subiects and treacherie to their Soueraignes in former times 3. His reuiling the proceedings Ecclesiasticall which he there impugneth 4. His vntrue imputations and slander of these proceedings And lastly the pretended impieties supposed thereby to be committed with the dangers and penalties that hee chargeth all such to haue incurred which haue bene dealers in such practise of Ecclesiasticall Iurisdiction For the first of these as where hee termeth all that practise that part of Ecclesiasticall Iurisdiction whether Ordinaries or Commissioners by the names of Inquisitors rough and rigorous exactors and offensiue butchers Chargeth them to cloake and shadowe foule matters vnder glorious and painted glosses beautifull shewes and fained pretenses that of their Iudiciall Courtes and Consistories this saying of the Poet is verified viz. Victa iacet pietas tergo caede madentes Vltima coelestûm terras Astraea reliquit As if they had there murdered or vnlawfully put some to death Where hee also saith that Ordinaries challenge or assume to themselues the goodly name and title of Spirituall men that they are men to whome the sauour of gaine is sweete and therefore sayeth of them Auro loquente tacendum est Those Doctors also which by commandement do as afore seeke to iustifie the course that he oppugneth he calleth thorowe contempt English Doctours a terme vsually sastened but vpon such as beare the name of learned and yet besides English their mother tongue perhappes vnderstand none other language at all yet the meanest of such Doctors can tell that a Publican differeth from a Collectour and that regula Iuris signifieth not an example or precedent at both which he stumbleth He pleasantly also like a Sennor Soldado sorteth nine of them by rankes into more then two quaternions as the souldiers which kept S. Peter were sorted as if through their basenesse a quaternion of them were not woorthie to be laid in ballance with a messe of such as himselfe is or as though in a braue resolution of his owne single valour he valued them by dozzens together and durst encounter them all at once like as the single Spaniard doth with so many naked and contemptible Barbarians He termeth them also in scorne Learned Canonists as if he would insinuate that the litle skill they haue were in the Canon lawe onely which he nameth the Popes Testament and as if their degrees of schooles were taken in that profession Whereas it is well knowen that their profession and degree is in the Ciuill lawes a lawe being for the equitie and wisedome thereof by the space of sundrie quaternions of hundreths of yeeres the common lawe of all the Ciuill nations of the world saue one What he esteemeth of it greatly skilleth not but Tullie a man more wise then he doeth giue it exceeding great commendations And all the Christian worlde sauing ourselues are not destitute of reason for well esteeming and practising of it For the course of those Doctours education it hath beene in the liberall sciences in the languages called learned and perhaps in such of the vulgar also as be of any commendable note and in other sortes of good learning Wherein if they haue accordingly profited their employment happely may bee many wayes thereby as behoofefull to the seruice of their Countrey as that which some call learning is beneficiall and gainefull to themselues Likewise the poore Apparitors that serue in Ecclesiasticall Courtes he calleth them their hunting Spaniels malepert Apparitours Messengers and Pursuiuants men though in meane place and but ministeriall qualitie yet as necessary to be had in those Courtes as Errand-bailifs be for Temporall To come to the second may it be denied that the matters wherewith he reprocheth the Popish prelates of former times are bent per obliquum through their sides to wound all the Reuerend fathers and others nowe liuing who for proceeding of Office against some of his darlings are fallen as deepely into his indignation For haue these sharpe biting termes bene bestowed vpon any of their late Predecessours or vpon them till of late yeeres that certaine disordered persons ioyning though in other respectes with the Papistes to oppugne this Church haue bene dealt with in the same course that Papists are and were from the beginning of her Maiesties reigne before these other sprung vp If this were not his meaning for what ende is almost halfe his Treatise spent by way of Inuectiue against the Popish Prelates So that no doubt hee meant to lay vpon the present Iudges Ecclesiasticall the reproches of them whose steppes hee chargeth them to followe in that this course of proceeding was if wee may trust him vpon his bare worde brought in by the practice of the Popish Cleargie And therefore hee sayeth that Bishops nowe practice Antichristian decrees and Popish Canons the very heades of that Hellish Cerberus of Rome and the synewes of his tyrannicall authoritie For else this were but running of riot and vaine barking against the Moone Of this sort are those his other speeches also viz. that the Papisticall Cleargie most irreligiously practised the same that they finding it a fitte instrument to mainteine their Romish Hierarchie and to tyrannize ouer the consciences of good men most impiously violating the lawes both of God man imposed this maner of corrupt oath vpon the people that they were far more cruell then Claudius or Caligula mad men greedie deuouring Wolues that they fed with delight their fierce and
cruell mindes that they tyrannized in cruell maner that they forced men with rough and rigorous termes of disgrace reproch that they were mercilesse magistrates vsing sudden and raging committance that they promised in verbo sacerdotali if that be ought worth and he calleth them vnbridled Clergie men Pharisaicall Clergie men vniust lawlesse men with their bad practices and fond intentions mercilesse Ordinaries with their extraordinarie and lawlesse power their actions cruell and accursed dealings of Barbarous bloudy bishops murtherous mindes and intollerable iniquitie of bishops vsing a Barbarous course of inquisition He inueigheth also at large against their hypocrisie feined holinesse against their temporall possessions as the nurses of pride presumption and vaine pompe of the world Truly if this kinde of mislikers had that litle of temporalties which is still left how hūble they would be may iustly be doubted but I durst vndertake for them that they will vse no great pompe in hospitalitie nor in any thing els sauing in words Likewise against their ambition for he affirmeth that three Archb. inforced aboue the kings of the land against vsurping encroching vpon the kinges iurisdiction by Popish prelates to bring causes to their costly and lingering consistories against bringing in by them of forrein decrees corrupt canons and ceremonies of the accursed See of Rome against their claiming of exemption from taxes imposed by any other whomsoeuer then by the Popes authority and against certeine clergie men that in former times opposed themselues with great obstinacie against the paiment of a subsidie as if lay men had not done rebelliously as much as these did obstinately Against haughtie Hugh bishop of Lincolne who hee saith as a lusty champion of that irregular confederacy drew out his woodden dagger of excommunication against the kinges Iudges against a bishop of Winchester who was outlawed for a wilfull murther and a while refused the iudgement of the kings law against the Popes collectour who conuented the vicar of Saltash afore himselfe for breach of an othe giuen for strength of a bond against the Hospitallers and Templers who drew the kings subiects into suite before the conseruatour of their priuileges And against the proud prelate cardinall Woolseys court legatine and both his and Nixe the blinde bishop of Norwich his falling into praemunire for encroching vpon the kings iurisdiction Adding also a slie surmise of some other things in the times of Poperie to haue bene vsed which he doth but vainely imagine to be now practised by Commissioners Ecclesiasticall So that by this tricke of cunning conueyance he would induce and draw on his affectionate readers to beleeue the same to be now in all bishops present which was blame woorthie in any of their predecessours For his fauourers may not iudge that such a man as he would wander so farre wide as he doth from his purpose belike if these now do but any one action though neuer so iustifiable which the Papists haue done in times past they shall carry all the cōtumelies which they in any other respects haue either worthely or vnworthely deserued Whether this be a direct Christian course euery one that is in any place of iustice shall most sincerely discerne which will but consider with himselfe how vnequall he would iudge it to bee to haue his owne honestie discretion loialtie and religion measured and esteemed of according to the actions of the worst men that euer afore occupied the same place that he now doeth Vnto the third point which is reuiling of proceedings Ecclesiasticall in this behalfe all such speeches of his as these following doe appertaine of the whole Canon lawe indistinctlie and generally he speaketh thus that they be lawes and ordinances contumelious against God iniurious to Magistrates and especially established to maintaine Antichristian tyrannie Of an Oath of purgation or an oath ministred to answere in some cases vnto Articles and interrogatories criminall he saieth It is against law and reason an intollerable error and disorder a fowle and great abuse hard and vniust dealing vndiscreete vniust and vnlawfull forcing offensiue proceeding vsurped officious power and licentious pleasure contrarie to all due course of Iustice a violent course of iniurious inquisition examination and of wrested oaths a lawlesse proceeding which the Iustice of the land detesteth that they be vniust oaths and full of iniquitie strange oaths strong purgations not healthfull but hurtful poisoning purgations giuen for preseruatiues Catholique oaths a vicious and lawlesse inquisition and lastly a prophane and more then heathenish Inquisition The fourth point concerneth his vntrue and slanderous accusations of their proceedings who be Iudges Ecclesiastical as where he saieth that such generall oaths viz. as afore hath bene touched when I spake of the issue mistaken are exacted none accusation suite lawfull information presentment or inditement iudiciallie preceding that the Ecclesiasticall Commissioners terme themselues high and supreme Commissioners that it is exacted by euery ecclesiasticall Iudge to satisfie his iealous suspicion of any crime to appose by othe and compell men to their purgation or vpon euery bare surmise and vncertaine rumour that by the like reason vnto the practise of this othe there should bee erected a court of Inquisition more then Spanish to sift and ransacke by othe most secret thoughts That the Interrogatories vsed by Ecclesiasticall Iudges are not certaine but doe foolishly wander at the doubtfull will of a slie and subtill apposer that hauing snared the sillie subiect they doe either against lawe enforce him to accuse himselfe of his most secrete thoughts or contrarie to Christian charitie yea humanitie constraine him to answere against his naturall parents c. And that in defence of these abuses diuers euen of the learned sorte doe great violence to the Statute 1. Eliz. cap. 1. wresting the same to a wrong sense all which are verie calumnious accusations The fifth and last point of his lauish and loose speeches concerneth the impieties dangers and penalties wherewith he chargeth all that haue delt in any such Ecclesiastical cause As first that it is a great and prophane abuse of the holie name and maiestie of God that Gods sacred institution is thereby greatlie peruerted that it is hurtful to the Church and common weale that it is a great indignitie to the Crowne that they vsurpe conisance of pleas that they doe no lesse-then Thorpe sometime chiefe Iustice did who as much as in him lay broke the oath which the king is bound to keepe towardes the people that they are violaters of the king and iniurious dealers against his Regalitie Crowne and kingdome nay rather laie violent handes on him impugne his royall throne and scepter contrarie to the policie Iustice lawes customes and freedomes of this kingdome yea contrarie to the lawe of God it selfe that hereby they impugne the royall prerogatiues vnited to the Crowne with the breach of their owne oaths especiallie if they haue taken the oath for the maintenance of the supremacie royall
whereof hee maketh some doubt as it seemeth and aduiseth them of this danger as a 1 Scilicet welwiller that it is playne extortion and wrong vnto the partie And lastlie that they are all offenders and doe incurre the forfaiture of the penall lawes of Premunire Seeing then his wordes of this matter bee so bigge his termes so biting his speeches so confident and peremptorie and his accusations so grieuous Is there not in defence of Iustice and of so many good and great learned men in seuerall professions great occasion offered to haue it examined whether the force and weight of his reasons will beare out this copious haruest and hote raging feuer of wordes or whether these wordes were but vsed because matter wanted What weight and moment his reasons are of is not of this place particularlie to discusse but shall bee reserued to the seuerall partes of the Discourse following And I will not striue by bare wordes to returne these of-scowrings of a fowle mouth and a defiled penne vpon him agayne further then must needes cleaue fast to himselfe the Authour of them when they shall by reason bee wiped off from the persons charged and so are to rebound backe vpon their first owner And to giue you an inckling in the meane time that it is not otherwise like then to fall out so It shall not bee amisse a little to consider how gingerlie sometimes hee treadeth in this matter and how here and there himselfe minceth and qualifieth the state of the controuersie as it were waiuing his first issue notwithstanding all those his former high lookes and braue termes For first he granteth that diuers euen of the learned sort doe hold and that verie confidently meaning hereby as I take it sundrie professors of the Common lawe that these proceedings which he impugneth are warranted by the Statute 1. Eliz. cap. 1. and can he whosoeuer he be for a man shewing no more yet see more herein then so many of the learned sort can that be of an other iudgement And though he exclaime as yee haue heard mightilie that this kind of oath is contrarie and a stranger to the lawes Iustice and policie of this Realme yet in the verie closing vp of his treatise hauing sayd that it was neuer put in vre or vse by any Ciuill magistrate of this land by the strength of trueth is forced to adde thereunto this exception viz. but as it is corruptly crept in amongst other abuses by the sinister practises and pretenses of the Romish prelates thereby imploying that yet it hath bene vsed of long time by the Ciuill policie and magistrates of this Realme noting them withall I know not with what other abuses as being ouerrought which belike they also shall heare of as his leisure will permit him if they please him not in the meane time the better Likewise going about to answere the obiection that may be made for iustifying of this othe by the like approoued course in the Starre-chamber he vseth these wordes as a reason of his allowance of such proceeding there viz. The Starre-chamber requireth an answere to matter in fact done either to the iniurie of a priuate person or hurt to the publike State Then by like reason if Iudges and Commissioners Ecclesiasticall shall but require this oath to answere matter in facte as in very trueth they doe none otherwise done to the hurt of the publike State then is the cause in controuersie thus farre yeelded vp by him But can he in deed thinke it reasonable and iust to exact such oath for punishment of an iniurie done but to a priuate person in his temporall goods or such like and shall it bee in his iudgement vniust and vnreasonable to be exacted for discouerie and restraint of such enormities which cannot be denied to be preiudiciall both to the state of the Church Common weale wherein Iudges Ecclesiasticall most vsually doe practise it Vltrà non desidero habemus quasi confitentem reum In another place of the Treatise he sharpely inueieth for that the Commissioners Ecclesiasticall minister the oath before the partie be permitted to haue the Articles Now in his shewing of differences betwixt the proceedings by Commissioners ecclesiasticall and the Starre-chamber one of them is this that the defendant there hath the copie of the bill of Information to answere by his counsell ere hee take his othe for the trueth of it yet hee restraineth it thus viz. So the Information in the Starre-chamber bee not made Oretenus so that it must hereupon needes be yeelded that at sometime and vpon some occasion it may bee and therefore it is not simplie vniust to giue the oath before the defendant haue a copie nor for him to be debarred from counsell when he answereth but interrogatories of his owne fact or knowledge For in deed the defendant in the Starre-chamber is not allowed counsel whē he answereth to Interrogatories sorted into Articles but only is allowed counsel for the maner of framing of his answere to the Bill into due forme of law the Counseller not aduising him in the matters of fact least happily he draw the defendant into periurie For it were very vnreasonable that counsell should direct him in the matter and as it were to say vnto him answere not this thus though it be true for then you are like to be grieuouslie punished Nay rather as a writer in the Ciuill law aduiseth the counsell euen to the bill of Information ought to tell the defendant to this effect Si hoc modo respondeas perdes quidem causam sed si aliter quà m veritas se habet perdes animam Furthermore in one place where he reprehendeth forced and constrained oaths hee limiteth his meaning by these words viz. in that generall maner which is as afore he had surmised viz. to sift generally all a mans thoughts words and deeds and that without any accusation or complaint precedent so that it is not simply the vrging of them to take oath in a criminall cause which grieues him or is to be condemned but to doe it in that generall maner for all thoughts wordes and deeds If then no such matter be in very trueth euer practised the man it seemeth will easilie bee reconciled againe vnto them whom hee so eagerlie afore snatched at and tooke vp Lastly in one part of the Treatise hee speaketh in deed against oaths in criminall causes but it is with this taxatiue restraint especiallie saieth he in causes of life and death contrarie to the lawes of this realme so that if it be not ministred in any cause of life and death no nor yet in any cause of mutilation of limme as in very trueth it is not now by any court ecclesiastical a thing most notorious then there is no cause of offense giuen either to the lawes of the realme or vnto himself And therfore for this time the Treatiser and those which exercise Iurisdiction ecclesiasticall may seeme in some broken maner to bee growen
proceed by that thereby without all scruple of danger their proceedings so appointed to them might haue bene warranted But being altogether needelesse it is no maruell though it were omitted For can any man doubt if it were needfull but that there is a sufficient Royall assent had when as it is giuen to the whole acte before it can passe for a Lawe Lastly the same statute out of 5 25. H. 8. ca. 19. which as I coniecture this opinion was stirred vp doth establish all Canons which be not contrariant nor repugnant to the Lawes Statutes and customes of this Realme nor to the dammage or hurt of the Kings prerogatiue Royall that they shall now still be vsed and executed as they were afore the making of that acte till they should be viewed c. by the 32. persons c. which is not hitherto done But such were vsed afore without any expresse or particular Royal assent from time to time obteined and therefore may still be vsed without any such newe assent For to exact it were in very deed to bring in a quite disuse of all ordinarie Ecclesiasticall Iurisdiction in stead of vsing it which hitherto from planting of Christianitie and in all succeeding times hath neuerthelesse bene practised This opinion as an arrow shot vnaduisedly at the Bishops glanceth off them and woundeth very deadly the fauourers of the new Discipline in whose behalfe it was framed for they are so farre from taking expresse leaue of the Prince to put euery of their Constitutions ecclesiasticall in vre that they holde her Maiestie hath nothing to doe to make or establish any Church-lawes And the clause for vse of such former Canons and Constitutions synodall afore mentioned as they were vsed afore that time will not helpe the exercise of their synodicall cōstitutions made long after in a Conuenticle called together by their Moderators writ But belike when they set vp the statute of submission of the Cleargie shall be turned into a statute of submitting the Princes scepter to the rule of their Presbyterie in all Church-matters The chiefest colour and pretence 1 25. H. 8. ca. 19. for this opinion is taken as I coniecture out of the now reuiued statute made in K. H. the eights time of submission of the Cleargie But the wordes thereof doe plainely discouer the weakenes of such collection for it is not enacted simply that they shall not put in vre c. any constitutions c. but according to their aboue said submission and petition which was that they would not enacte nor put in vre any new Canons c. in their Conuocation without the Kings royall assent and authoritie in that behalfe Otherwise there were a flat contrarietie in the selfe same Acte by reason of the last prouiso thereof next afore repeated where Canons already made so they haue the qualities thereby limitted are appointed to be vsed For it is there said shall be now still vsed and executed as they were before the making of that Acte And where in 1 27. H. 8. c. 15. the 27. yeere of the said King the same submission and former Acte is repeated there in the very body of the statute touching not putting in vre of Canons c. the same modification as afore is retained viz. According to the said submission and petition of the Clergie which concerneth onely newe Canons For of those that were then already made the very selfe same prouiso as afore is set downe appointeth that they shall still bee vsed and executed as they were before the making of either of those Acts. Which was without any such expresse assent as by this opinion is enforced and is therefore neither requisite nor almost possible I haue also heard some alledge the 2 1. Eliz. ca. 1. clause of the statute made for vniting of all Ecclesiasticall Iurisdiction to the Crowne against the exercise of Iurisdiction by any Ordinaries which to mine vnderstanding is a very simple collection Belike they meane that no Iurisdiction is vnited to the Crowne but there must be a Commission vnder the great Seale to warrant the execution of it vnto him that is to exercise it Then must euery Stewarde of a Leete euery Constable and sundrie other Officers be driuen to procure like warrant for the execution of their Temporall offices for I trust it will not be denied by these men but that all Temporall authoritie and Iurisdiction is by Lawe also vnited to the Crowne In deede this reason would serue against either the one or the other Iurisdiction if they were not deriued and claimed from the Crowne but from some other authoritie immediatly as the Popish Clergie did theirs from God by the meanes and direction of the Pope Yea euen another 3 8. Eliz. ca. 3. Parliament sheweth howe farre this collection is from the minde of the makers of that Lawe For that very clause 1. Eliz. ca. 1. together with her Maiesties letters Patents directed foorth for confirming and consecrating Archbishops and Bishops is brought in the Preamble thereof as a strong proofe without scruple and ambiguitie that the authorities and Iurisdictions by them executed be thereby giuen vnto them from her Maiestie And therefore this opinion doth remaine destitute of any ground of Lawe CHAP. II. The particular distribution of all other causes to be prooued to be of Ecclesiasticall conusance besides Testamentarie or Matrimonial with a discourse of Bishops certificats against persons excommunicate being a speciall point of their voluntarie Iurisdiction where there is no partie that prosecuteth THe next opinion viz. That by the lawes of this Realme none Ordinary may cite any whomsoeuer but in causes Testamentarie or Matrimoniall though it draw deepe yet it hath not so large a reach nor draweth so great a compasse as the former For this leaueth some ordinarie Iurisdiction Ecclesiasticall in these two cases where the other vpon the matter sweepeth away all But if this be simply true then the former must needes be false For if by Lawe an Ordinarie without more a doe may cite men in these two cases then may some Canon c. by Lawe be put in vre without any further Royall assent to execute the same But if it shall be prooued true that by the Law of the land in some causes besides Testamentarie or Matrimoniall an Ordinarie may cite Then this opinion that in no causes besides Testamentary or Matrimoniall an Ordinarie may cite being the contradictorie thereof must needes according to rule of reason be prooued false For it will not be denied by any but in what cause soeuer an Ordinarie may lawfully deale in that if neede be he may vse citation All matters done by Bishops who onely be immediate Ordinaries vnder her Maiestie either belong to their order and degree as ordeining of Ministers or Deacons cōfirmation of children dedication of Churches or Churchyards or to their Iurisdiction Their Iurisdiction is of two sorts the first is voluntarie that is when those whom they deale
conceiuing thereof sundry tooke occasion to wrangle quarrell with that which was after enioyned vnto them as if it were not conteined within the words or meaning of their caution and therfore that clause that such should satisfie for their contempt for the iniury to the church was often vsed in the kings writs of that nature to auoid all cauill and for more full explanation In such caution two things besides are required the one that it be idonea sufficiens as appeareth by all the writs in this behalfe that be set downe in the Register the other that it be offered by the party who is to submit himselfe For it is 2 Ibid. pag. 66. b. 67. a. Nou. nat br pag. 63. c. said in one of those writs thus viz. Idem W. cautionem saltem pignoratitiam iuxta intentionem mandati nostri praedicti de satisfaciendo de huiusmodi contemptu iniuria antequam à prisona praedicta deliberetur offerre debet tenetur For a caution is not imposed by the Ordinarie but is accepted by him vpon the parties submission and offer therof when he seeketh to be absolued from the censure and deliuered out of prison But what may be reckoned to be idonea sufficiens cautio I finde not determined or colligible out of the bookes of Common law One kinde thereof which is pignoratitia a caution reall or by gage is mentioned in the next allegation afore And in that it is there said the party should put in cautionem saltem pignoratitiam we are thereby giuen to vnderstand that the courts of Common law doe take knowledge of some other kindes of cautions besides this and accounteth of this as being not of the most grieuous sort of cautions vnto the partie The word Cautio is a terme taken out of the Ciuill law for which at the Common law they 3 Nou. nat br pag. 63. c. vse securitie or obligation c. therefore what be the seuerall kindes of cautions must be taken out of that learning Cautions in Ciuill law be of three sorts one is Fideiussoria as when a man bindeth himselfe with sureties to performe somewhat another is Pignoratitia or realis Cautio as when a man gageth his plate or morgageth his land for performance the last is luratoria cautio as when the party which is to performe any thing taketh a corporall oath to do it By the Ciuill law a Iudge is not bound to accept of this last vnlesse the partie will also sweare that he is not able to put in either of the other And therefore where Ordinaries doe promiscuously at absolutions accept this Iuratorie caution offered de parendo iuri stando mandatis ecelesiae in forma iuris they doe more then they simply need to doe and rather gratifie then doe any grieuance to the partie as some haue thought For seeing this hath bin the most vsuall nay for a long time almost the only caution giuen at absolutions that they may lawfully still accept it is made manifest by statute viz. sauing and reseruing to allarchbishops and bishops and all others hauing authoritie to certifie any person excommunicated like authoritie to accept and receiue the submission and satisfaction of the said person so excommunicated in maner and forme heretofore vsed and him to absolue and release c. 5. Eliz. cap. 23. yet is not any of them so simple but he will thinke either of the other two if they be offered to be better security then the parties bare oath a matter so little regarded of most men in these latter times of this bad world For satius est incumbere rei quà m personae Reall securitie is more safe then personall Now when such caution is offered as the Ordinarie doth accept of for the parties performance of that which shall be enioyned vnto him shall he needs be forced to send for a writ of deliuerance vnto the Chancery No verely For the bishop himselfe if he will may enioyne the shiriffe to deliuer him Accedas saith 1 Reg. in br orig pag. 66. a. nou nat br pag. 63. c. d. the writ vnto the shiriffe in propria persona ad episcopum ex parte nostra moneas efficaciter indicas vt accepta cautione praedicta ipsum mandet deliberari à prisona And againe a writ to a bishop runneth thus Mandamus quòd accepta cautione praedicta ipsum deliberari mandetis alioquin quòd nostri est in hac parte exequemur And therefore Fitzherbert 2 Nou. nat br pag. 63. g. sayeth plainelie that the bishop or hee at whose certificate the partie was taken may command the shiriffe to deliuer him out of prison But what if the Ordinarie shall refuse to admit of the caution offered and thereupon to release him albeit the caution be good and sufficient shall the partie remaine still in prison Nay the writte de cautione admittenda is prouided for remedie in such a case This not deliuerance after sufficient caution offered may happen either vpon negligence delay in the bishops vnder-officers or vpon his owne wilfulnesse Vpon such vnder-officers delay as when the bishop willeth them to absolue the party excommunicated in which case 1 Reg. in br orig pag. 65. b. Nou. nat breu pag. 63. f. the shiriffe is not to make deliuerance till it appeare vnto him that the party is indeed absolued Neither is 2 Ibidem such officiall or archdeacon bound to certifie the shiriffe that they haue receiued letters from the bishop to absolue him but the shiriffe ought to go or sen to them to know the truth and accordingly to make deliuerance If it happen vpon the bishops owne wilfulnesse in such case I finde two degrees obserued in proceeding for first 3 Reg. pag. 66. a. Nou. nat breu pag. 63. d. there goeth a writte to the bishop himselfe that he admit of the caution and also that he command the partie imprisoned to be deliuered or else the king will doe that which apperteineth to him in like case to be done But if this will not serue the turne then secondly may the party haue a 4 Reg. in br orig pag. 66. a. Nou. nat breu pag. 63. d. writ directed to the shiriffe that in his owne person he repaire to the bishop and on the Queenes behalfe monish him and effectually require him that taking first such caution he command the prisoners deliuerance and that if he shall refuse in the shiriffes presence to doe it then the shiriffe himselfe taking 5 Reg. pag. 67. a. such sufficient caution of him doe deliuer him And if the shiriffe also shall appeare to be negligent or wilfull the 6 Reg. 66. a. partie may haue the like writte to the Coroners But they must likewise first before they deliuer him take sufficient caution of him viz. de parendo mandatis ecclesiae in forma iuris de satisfaciendo tam de contemptu quà m de iniuria ecclesiae illata
my part I haue not hitherto found mentioned in any Statute or any report of the Common lawe though I haue carefully sought for them Now I will resume againe after this long but I trust not vnnecessarie digression the second member of ecclesiasticall Iurisdiction called contentiosa Iurisdictio That is when such matters be handled against which some partie standeth or is delt with thereby against his will If it be contentiosae iurisdictionis whether it be for a right there demandable and determinable or else for a crime there punishable which are the heads of all litigious Iurisdiction ecclesiasticall it cannot be intended that parsrea is contra quem res agitur the partie to be delt against will gratis without processe appeare frō time to time attend except it happē somtimes by collusion w t the plaintife And in this respect amōgst others it is said that iudiciū redditur in inuitū Reus is called pars fugiens the partie presumed to come thither against his will and willing inough to be gone if he might Therfore if any cause besides those two shall be proued such as the Ordinarie may lawfully deale in it wil folow that in such a matter also he may vse a citation to call him Dato enim principali necessaria adiacentia veniunt in consequentiam But that an Ordinarie may deale in sundrie other causes besides these two it shall appeare both by Statutes which are the iudgements of the whole Realme and by the iudgements and vncontrolled opinions reported in the bookes of the Common lawe In discourse whereof will appeare not onely 1 Aristot. in lib. poste Analyt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that the matter is so but also 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the reason why and in what maner and sort it is determinable or punishable there being three principall questions to be opened for the perfect knowledge of anything that is to be handled and seruing in these controuersies to some further vse and profite which may lighten you in the length of the disputation Pursuing therefore the two former heads of that part of Ecclesiasticall Iurisdiction first the matters by litigious Iurisdiction demandable and determinable are either such as are yeelded to be meere Ecclesiasticall by the authors of this opinion viz. Testamentarie and Matrimoniall to the first whereof for affinitie sake I adde last Wils such as may not be termed Testaments Codicils Legacies Administrations Sequestrations of the deads goods commonly called letters ad colligendum and to the later I ioyne diuorces iactitation of Matrimonie questions of legitimation or bastardie for restitution of a mans wife taken away that a man shall receiue his wife againe and suites for goods or chattels promised with a woman in mariage or else they are such others claimed to bee Ecclesiasticall as remaine still by this opinion in controuersie All which I thinke may bee comprehended vnder the generall terme of reliqua iura Ecclesiastica And these are either some duetie arising at first vpon exercise of voluntarie Iurisdiction and yet by deniall made litigious such be reall compositions sought by some partie to be disanulled procurations pensions Synodals Pentecostals indemnities fees for probates c. or growing due only vpō exercise of litigious Iurisdiction these are either due to the Iudge himselfe as fees of citations fees of sentences c. or are due to others attendants in the Court as fees of Aduocats Proctors Registers Apparitors c. or else they are such as are due to Ministers in the Church that haue no title as wages for a Curate or a Clerke or vnto a Minister that hath title And this right of a Minister that hath title toucheth either something incident to him as to name the Parish Clerke or concerneth the whole title and interest in and to his benefice or else toucheth but his maintenance and liuing His interest and title tendeth either to attaine it when he pretendeth iust title to it or to reteine it being in his possession or else to recouer it being bereaued or spoiled of it The dueties which concerne Ministers maintenance are tithes of all kindes Oblations Obuentions Pensions Mortuaries Churchyard or place of buriall c. Or lastly it is something that is due to a whole Parish as to haue a Chapleine found or diuine seruice or Sacraments administred amongst them or something due to their Church to be deliuered or for a Parishioner to be contributorie with the rest to reparations of the Church to seates to bels to the buying of bookes of Vtensiles or of other ornaments and requisites in the Church Concerning crimes offences claimed to be punishable by Iurisdiction Ecclesiasticall they may al I thinke be reduced to some of the three heads touched by S. Paul viz. as being contrary either to Pietie vnto God to Iustice towards our neighbour or Sobrietie towards our selues That which is against God the Latinists cal by the name of Impietas that which is against a mās neighbour they terme Facinus and that which a man designeth against himselfe Flagitium albeit the two last be often confounded without any curious obseruation of such proprietie of wordes Against Pietie to God-wardes are these blsasphemie swearing idolatrie heresie errour in faith schisme apostacie from Christianitie not frequenting publike prayer neglect of the Sacraments periurie in an Ecclesiasticall Court or matter disturbance of diuine seruice vtolating and prophaning the Sabboth and such like Contrary to Iustice are these Simonie vsurie diffamation subornation of periurie in a Court Ecclesiasticall violence to a Minister sacrilege dilapidations not building of a Church enioyned by atestatour not fencing the Church-yard not repairing a Church or Chauncell or not keeping of it in comely sort or when a Church-warden refuseth to yeelde an account of the Church stocke goodes violating of a sequestration made for tithes not paide hindering to gather or carry tithes money promised for redeeming corporall penance and detained contempt to the ecclesiasticall iurisdiction fighting or brawling in Church or Churchyard and such like And against Sobrietie are these all Incontinencie not made death by the lawe of the Realme whether committed with one which is of his kindred in blood forbidden either in generalitie or by some of the degrees Leuitical or with one of his alliance so forbidden both which are called incest or committed by such whereof the one is married which is adulterie or where the one of them hath bin maried termed by some stuprum or where both be single termed simplex fornicatio or whether it be marying of two wines or being maried vnto two husbandes at once which is called Polygamie Sollicitation of a womans chastitte drunkennesse filthie speeche and such others There be also certaine punishments and censures besides these which I thinke will be yeelded to be matters of ecclesiasticall iurisdiction as enioyning of penance suspension from entrance into the Church or from the Lordes supper or from execution of a ministers office or
the Booke aforesaide that a man for his wife onely may haue Action of trespasse at the Common Lawe and also a writte de vxore abducta cum bonis viri Also for a man that liueth asunder from his wife there lyeth Action in a Court Ecclesiastical for him to receiue her againe and to cohabite with her as may be gathered by 9 13. Ed. 1. c. 34. that statute of Westminster the second where it is prouided that a woman eloped from her husband shall loose her dower except the husband without compulsion Ecclesiasticall doe receiue her againe Therefore for a man to receiue his wife againe compulsion Eccles. may in some case be vsed with allowance of the statutes of this Realme Lastly it remaineth to shew here when and howe goods and chattels promised with a woman in marriage after the marriage accomplished be demandable and determinable in the Court Ecclesiasticall For besides one or two cases afore rehearsed where by the way so much is implied it appeareth by many consonant iudgements in the very point For if a 1 22. Assisatum fol. 70. per Thorpe cui concordat M 16. H. 3. per Fitzh proh 22. contract be made betweene two men that if the one will take to wife the others daughter then he will giue him tenne pounds In this case if the money be to be demaunded it shall be demaunded in the kings Court because hee did not promise the money with his daughter in mariage but by way of couenant that he should marry his daughter But if he had promised the money with his daughter in marriage then it shoulde haue bene demaunded in Court Christian. Likewise 2 14. Ed. 4. 6. in an action of debt the plaintife declared that he had married the daughter of the defendant and that he should haue twentie pounds in respect thereof and by agreement of all the Iustices of the Common Plees without any answere of the defendant it was decreed that the plaintife should haue nothing vpon his writ because it is determinable in a Court Christian and is of the same nature as the very marriage is So doth 3 Reg. fol. 46. 48. per Brooke tit prohib Brooke also collect out of the Register that for marriage money and pensions the suite lieth in the Spirituall Court and agreeable to the former distinction of Thorpe Fitzherbert 4 Fitzh no. na br tit proh fol. also reporteth it in his Nouanatura breuium Bracton in like maner affirmeth it 5 Bracton lib. 5. cap. 16. and yeeldeth a reason thereof for hee speaking of Ecclesiasticall iurisdiction saith thus Sic de rebus datis vel promissis ob causam matrimonij principaliter sic de rebus quae accidunt matrimonio vt sipe cunia promissa fuerit ob causam matrimonij quia eiusdem iuris id est iurisdictionis esse debet accessorium cuius est principale And albeit Brooke 6 Brooke t. t. iutisdict in his abridgement report that the same was also else-where holden by 7 17. E. 4. fol. 4. three viz. Chocke Townesend and Littleton yet hee himselfe seemeth to doubt of it and saith there is also great 8 37. H. 6. fol. 9. opinions against it because there is quid pro quo and therefore likely to be determinable in a Temporall Court Therefore it may probably bee thought that these opinions which hee speaketh of in this behalfe 37. Hen. 6. either were meant in such a case as grewe to a lay contract such as Thorpe speaketh of in the booke of Assises afore alleaged or else there was some couenant for the money by deede For 1 45. E. 3. fol. 24. per Br iurisdict 11. in an Action of debt brought vpon a couenant by deed that if the plaintife should marry the defendants daughter the defendant should giue him an hundred pounds which condition of marriage the plaintife had performed it was adiudged that notwithstanding Articuli Cleri the matter did belong to the Temporall Court because it was by deede but it had not belonged to it but to the Court Ecclesiasticall if it had bene without deede And the rather may it be thought because this hath bene taken for Lawe both afore and since notwithstanding those opinions mentioned by Brooke First in the 2 Reg. in Br. orig pag. 46. b. Register wee finde to this effect a certaine woman in consideration of Matrimonie to be contracted with her daughter promised 40. marks the Matrimonie was accordingly celebrated the woman dieth making executours Then for not paiment thereof the husband bringeth his Action in the Court Ecclesiasticall the executours obteine a prohibition whereupon the matter comming to scanning a Consultation is neuerthelesse graunted whereby is affirmed that the Ecclesiasticall Court may lawfully proceede therein Yea and long after these opinions deliuered Fitzherbert affirmeth that such suite belongeth to the Court Ecclesiasticall as hath bene alleadged And so doth the little Treatise of the liberties of the Clergie by the Lawes of the Realme in these 3 Goodall of the liberties of the Clergie wordes viz. If he that promised money with his daughter in marriage dieth hee that married her may sue the executours for the money in the Spirituall Courts There is in the saide little Treatise another case touched affirmed to be of Ecclesiasticall conisance which belongeth to this Chapter It is 4 Ibidem this If a man saith hee giue goods with his daughter in marriage and after there is a Diuorce the same may sue for those goods in Ecclesiasticall Court But hee sheweth not whether vpon any Diuorce whatsoeuer the goods be there recouerable viz. whether aswell when the Diuorce arose of the womans adulterie as when it grew vpon some consanguinitie or other Canonicall impediment founde out after mariage Hitherto concerning those kindes of Iurisdiction Ecclesiasticall which I adioyned to causes Testamentarie and Matrimoniall CHAP. IIII. Generall proofes out of Statutes that sundry other causes besides Testamentarie or Matrimonial are of Ecclesiastical conusance BEfore I proceed further to shewe in particular what matters besides be of Ecclesiasticall conisance and Iurisdiction and how farre I holde it nothing amisse to shew in some generalitie first that there are some other such which be neither Testamentarie nor Matrimoniall nor yet any way depending or of affinitie to them The Great Charter to the obseruation and propugnation whereof the King and the great Nobles and Officers were wont to be sworne layeth this ground-worke of all which followeth We haue granted to God and by this our present 1 Mag. Chart. cap. 1. Charter confirmed for vs and our heires for euermore that the Church of England shal be free and shall haue all her whole rights and liberties inuiolable But that the Church had these rights and liberties then which are now claimed the Actes of Courtes Ecclesiastical in those and former times and in all succeeding ages without prohibition or other oppugnation with the
5 44. Ed. 3. 33. benefice a man is to be sued in Court Christian. But this lieth not but where a Clerke is in as an incumbent for if he be in as an vsurper of the Church being full or as a trespasser there lieth action of trespasse and not spoliation But if two 6 38. H. 6. 19. incumbents be in and the one claimeth by one patrone and the other by another there lieth no spoliation but where both claime to be in by one patrone or by meanes of one patrone then lieth action of spoliation and not otherwise For where the right of Aduouson may come in questiō there lieth no spoliation for that cannot goe to a Spirituall Court And againe a litle after 7 38. H. 6. 20. Spoliation and debate vpon an appropriation shal be determined in the Spirituall Court Touching tithes where they are to be sued it appeareth by actes of Parliament thus The 1 13. Ed. 1. ca. 5. Westm. 2. plea for tithes shall passe in the court Christian as farre foorth as it is derained in the Kings court In the next Kings 2 9. Ed. 2. ca. 1. Artic. Cleri dayes thus In tithes oblations obuentions mortuaries sithence they are proposed vnder these names the Kings prohibition shal holde no place 3 Ibidem cap. 5. And againe the Kings prohibition shal not lie for tithes of a Mill newly erected Likewise in the dayes of K. Richard the 2. it is thus 4 1. Ric. 2. ca. 13. conteined in a statute The Clergie complaine for that the people of holy Church pursuing in the spiritual court for their tithes and their other causes which of right ought and of olde times were woont to perteine to the spirituall court and that the Iudges of holy Church hauing conisance in such causes and other persons thereof medling according to the lawe be malitiously endited c. and by secular power oppressed and be forced by oathes obligations and many vndue meanes compelled to ceasse vtterly against the liberties franchises of holy Church It is enacted that such obligations made by violence should be voide and the enditors of malice when the enditees be acquit should incurre the paine of those that procure false appeales c. Likewise the preamble of a 5 23. H. 8. ca. 9. statute in K. Hen. the 8. dayes doeth argue that matters of tithes are to be heard and determined by Iudges Ecclesiasticall The same is also proued by that where in 6 24. H. 8. ca. 12. another statute it is said thus Inconueniences haue arisen by reason of appeales out of the Realme to the See of Rome in causes testamentarie causes of matrimonie and diuorces right of tithes oblations and obuentions And in 7 27. H. 8. ca. 20. the preamble of another statute Deteiners of tithes pursuing such their detestable enormities and iniuries haue attempted in late time past to disobey contemne and despise the processe lawes and decrees of the ecclesiasticall courtes of this Realme in more temerous and large manner then before this time hath bin seene And therefore it 8 Ibidem was then enacted that for subtraction of tithes offerings and other dueties of holy Church the partie grieued may by due processe of the kings ecclesiasticall lawes of the Church of England conuent the person offending before the Ordinarie and also compell him to yeelde their saide duties And likewise for any his contempt disobedience or other misdemeanor vpon complaint to any of the Counsell or to two Iustices of the peace to haue him committed vntill he shall be bound to giue due obedience to the processe proceedings decrees and sentences of the ecclesiasticall court of this Realme And 1 32 H. 8. ca. 7. afterward by another statute of the same King it is enacted that for denying to set out tithes for deteining withholding or refusing to paye tithes or offerings Ordinaries may proceede according to the course and processe of the ecclesiasticall lawes And in the 2 Ibidem preamble thereof it is directly affirmed that by order of the common lawes of this Realme a man cannot haue any due remedie against deteiners of tithes And the 3 2. Ed. 6. ca. 13. like also appeareth by the statute of tithes made in K. Edwardes reigne That which is afore affirmed and determined concerning tithes oblations obuentions and mortuaries may likewise be said of pensions portions corrodies procurations indemnities and other such dueties ecclesiasticall For it is enacted that 4 34. 35. H. 8. ca. 19. for these denied ecclesiasticall persons themselues may make such processe against the person denying or against the Church charged as heretofore they haue lawfully done and as by and according to the lawes and statutes of the Realme they nowe lawfully may doe And the person conuict according to the ecclesiasticall lawes shall pay to the plaintife the things recouered and his costes CHAP. VI. That suites forright of tithes belong to the ecclesiastical Iurisdiction and how farre is shewed out of the bookes and reportes of the cōmon lawe so of places of buriall and Church-yardes and of Pensions Mortuaries Oblations c. THe reportes of iudgements and opinions of the Courtes at the Common lawe conteyned in the bookes of termes and yeeres called booke-cases and other treatises of that lawe are no lesse plaine pregnant in this matter An 5 M. 44. Edw. 3. fol. 32. attachement vpon a prohibition was sued against a plaintife in a Court Ecclesiasticall surmising that he did sue there for hay and money which touched neither matrimony nor testament but vpon shewing the libel which proued it was for tithes oblations a consultation was granted for the spiritual court to proceede And 6 M. 22. Ed. 4. fol. 24. passim alibi where the right of tithes is in question it is triable in the Court spiritual Likewise 7 38. H. 6. fol. 21. so soone as it appeareth that the right of tithes comes in debate the Lay court shal cease shal be out of iurisdiction quod fuit concessum The same is testified in the booke of Assises 1 22. Assis. fol. 75. For if the Kings patentee of tythes renewing in a Forrest that is in no Parish in which case the tythes doe belong to the King haue cause to sue any that ought to yeelde tythes and ought to seuer them from the nine partes such suite shall goe to the spirituall Court In the booke of Entrees in the precedent of a 2 Prohibition consultation 2. consultation graunted it is thus said In causis de decimis de testamento velmatrimonio quando sub eo nomine proponuntur prohibitioni Regiae non est locus And so 3 Bracton lib. 5. cap. 2. Bracton saith Non pertinet ad Iudicem secularem cognoscere de ijs quae sunt spiritualibus annexa sicut de decimis alijs Ecclesiae prouentibus 4 Bracton lib. 5. cap. 16. And againe afterward Mutatur
quandoque iurisdictio de iurisdictione in iurisdictionem mutatis rerum nominibus vt si de Laico catallo fiat spirituale vt cùm res fuerint decimatae fiunt de Laico catallo res spirituales sic mutatur iurisdictio secularis in spiritualem And therefore where it is reported in the booke of Assises 38. pag. 20. that the Exchequer held plea in matter of tythes betwixt two parsons of Churches because the one was the Kings debtour it is 5 Brooke tit Iuris 9. said that neither of the Benches would haue done it and that it was a marueile It appeareth in the Register by 6 Regist. in br orig pag. 45. b. 46. 47. b. 48. b. sundry consultations graunted after prohibitions brought that at the Common lawe so declared and confirmed by Articuli cleri tithes are of ecclesiasticall conisance And it is alledged 7 Gooddall of the liberties of the Clergie Regist. pag. 51. a. D. truely out of the Register that for tithes happening due in time of vacation of a benefice the Iudge ecclesiasticall may cite ex officio More particularly sundry kindes of tithes are there expressed which by consultations were prooued and allowed to belong to the determination of an ecclesiasticall Court. As first 8 Reg. pag. 48. b. tithe of wooll rising of sheepe killed or dead Againe 9 Reg. pag. 48. a. tithe of calues lacticiniorū that is of milke butter cheese as it may be gathered by another consultation are both due to be paide and demaundable in a court ecclesiastical Thirdly another 10 Reg. pag. 49. a. cōsultation cōteineth not only butter cheese lacticinium to be due and demandable in court eccles but also of pannage that is tithe of maste of coltes To these doth the Treatise of the 11 Gooddall of the liberties of the Clergie by the lawes of the Realme liberties of the Clergy adde tythes for hony waxe of bees But why he should say further that it seemeth all these must be by prescription as if tithes of all kindes were not ipso iure due sauing when some lawe doeth otherwise specially limit and determine I must confesse y t I can see no seeming nor yet colourable reason And not onely the partie himselfe who deteineth tithes may be sued but if he die his executors may be sued also for them in court ecclesiasticall For so is it 1 Regist. in br origin pag. 48. a. Gooddall ibidem testified by a Consultation obteined for tithe of Wooll denied by the Testator and by his executors who brought the prohibition And the 2 Gooddall ibid. like is testified by the said treatise of the Liberties of the Clergie touching tithes of Mils Whereas also for restraint of the malice of diuers a prouinciall constitution was made by the Bishops of the Prouince of Canterbury in their Synode at London that such as hindered the gathering or cariage of tithes by due and accustomed wayes should be excommunicated ipso facto It happened that a parson bringing his action in court ecclesiasticall vpon that constitution was hindered and staied by prohibition suggesting that it was instituted touching debts and chattels being neither Testamentarie nor matrimoniall But the consultation 3 Reg. p. 46. b. 47. a. Gooddall of the Liberties of the Clergie granted doeth signifie that the court ecclesiasticall may lawfully proceed in that plea so farre foorth as the action reacheth but to the excommunication of the partie by reason of his hindering the Parson to gather and carie tithes by places due and accustomed so that the said constitution and suites ecclesiasticall thereupon brought be both allowable Yet we are to vnderstand that neuerthelesse in some cases the suite for tithes doeth not lie in an ecclesiasticall court as for example where it is otherwise determined by statute For it is prouided that 4 45. Ed. 3. ca. 7. where a man is sued in a court Ecclesiasticall for tithes of great trees aboue 20 yeeres growth which may serue for timber of ships or houses the kings prohibition shall lie But it was 5 Reg. in br origin pag. 49. a. in Notabili Brooke tit Consultat 11. agreed in the Parliament at Sarum that a consultation lieth for Sylua caedua albeit it renew not yeere by yeere It was also 6 Plowden 17. Eliz. inter Sobie Mullins adiudged in the case betwixt Sobie and Mullins that of hornebeames Sallowes and such like trees that are of so base nature that they serue not for building nor are of any endurance and seruing for fewell and other meane vses tithes should be paied not only of the trees themselues but of their boughes when they are lopped of what age soeuer they be The 7 Ibidem opinion of the Court in this case then further also was that if the tree it selfe by that statute being but an affirmance of the Common lawe afore bee priuiledged for tithes as Oke Ashe and such like that the armes boughes also of them being of twentie yeeres growth or aboue shall be free likewise And the reason is added for they may serue for some vse in building So that here it may be doubted if trees aboue twentie yeeres growth being of a kind priuiledged and timberable as Oke Ashe Elme c. be of themselues so little so crooked or so rotten as that they can serue for nothing but blocks and fewell and be also so emploied whether thereof tithes shall be paied and bee demandable in a Court ecclesiasticall For here the reason of that iudgement doeth cease because they serue not for any vse in building cessante ratione cessat lex This doubt is also enforced by the opinion 1 T. 11. H. 4. fol. 242. of Askham who to maintaine the prohibition there brought though the suite in the ecclesiasticall court were for great wood was driuen to auerre that they were such great trees as might serue to build an house sufficient for any mans dwelling according to the custome of the Countrey Which allegation of matter in fact had not needed if onely the kind and age of the trees had bene to be respected to maintaine the Prohibition But this question is to be discussed by the reuerend and learned Iudges I doe find a Note in the Register but not set downe by whom nor when touching immunitie of some things from paying of tithes to this 2 Nota in Reg. pag. 54. b. effect viz. Note that the Iustices say that tithes shall not be yeelded but of such things as bring profite from yeere to yeere and that by the memory of man but this is against the Decretals saieth he Now admitting this report to be true what might be the reason of such opinion of those that were Iustices then is not expressed I cānot coniecture for not only the Decretals Canō law but Gods written law before that y e law of nature vnder which other thē such
tithes were paid do seem to be against it those Iustices had not for any thing I can find either former written law or any report of vn writtē law or custome to y t effect And if this should be receiued for lawe as is here in words laid downe then need no tithes be paid of Sylua caedua yet was it determined in the Parliament at Sarum y t they should so 3 Reg. pag. 44. it is at the Cōmon law also And thē neither parsonall tithes nor tithes of Mils nor tithes of Licoras nor of Saffron heads being gathered commonly but once in 3. yeeres nor tithes of corne out of fields that lie fallow without fruit euery other or euery third yeere nor tithe calues or lambes falling of such cattell as do bring forth but euery other yeere nor tithe of fruit trees that beare but one yeere in three And if tame elephants for cariage were vsed as commonly here as in some other countries which go with yong two or three yeeres together by like reason no tithe of thē neither might at all be demanded because euerie of these are such as bring no profite from yeere to yeere Where also is added that this yeerely profite must haue had his continuance by the whole memorie of man hereby would be cut of all tithes of grounds newly stubbed vp turned to good medow pasture or arable from great timber trees Likewise all tithes of any new sets and commodities as of sundry rootes artichocks osiers woad rape-seed hoppes French wheate and such like being in most places but of late knowledge and small continuance were wholy taken away And so were all tithes of grounds lately left dry by the sea or by fresh waters or wonne by the industrie of man The same Note further reporteth that the Iustices opiniō then was that for tithes of pit-coles quarries and other like by no means a Consultation should be granted because Parsons tooke tithe of the blades that grew on the ground ouer them therefore they should not take tithe of the coles This opinion as it seemeth to me that very Note misliketh in these words But saith he by the like reason a man ought not to pay tithe of agistment because hee yeeldeth tithe for the beasts that feed in his pasture But I doe not well conceiue the trueth of that which he here insinuateth as if Agistment money were to be paied for the herbage of the same beasts which by their calfe lambe wooll or milke doe bring commoditie to the Church Yet if he meane that tithe of Agistment money is to be paid for barren cattel though they depasture in the same pasture where fruitful cattel do at the same time then doeth he come neerer to the purpose of confuting that reason which implieth thus much that seueral kinds of commodities in one yere arising out of one ground should yeeld but one kind of tithe For if this were true then where tithe of haie hath bene paied nothing should be yeelded for the after-math commonly being halfe the value of the haie though it bee depastured with cattell which bring no commoditie to the church then also might not the vicar of Tenham in Kent haue tithes as he hath of the fruit of the great Orchard in Sommer because he had tithe loppings of the trees in Winter amounting to sundry loades of fagot And then also should not the Church haue tithe fruite of such great yong Orchards turned from tillage as still yeeld tithe corne or haie growing vnder the trees for sundry yeeres together If to these obiections it be said y t there is great diuersitie because these examples do in deed import seuerall fruits commodities to be taken yet either at diuers times of the yeere or else arising out of seuerall parts of the ground for replie I say that the like may be also said of colepits quarries for so much of the groūd aboue as is digged beareth at that time neither corne nor grasse And albeit for coles when men be come to a certaine veine and depth they vse to dig side-long leauing great pillars to support the earth frō falling yet is it not the self same part of the ground below where they dig that beareth grasse or corne aboue and therefore herein no diuersitie And with like reason might tithe of the seed of Woad be denied because tithe of the leaues was afore paied or tithes of Saffron heads because tithe Saffron was paied the same yeere Yea if this note were assured lawe then should no tithes be paied of any Minerals as of lead tinne copper quicksiluer c. how it goeth in Cornewall Deuonshire and at Mendiffe hils in Somerset shire for tinne and lead I haue not enquired but I am assured that in the Peake in Darbishire tithe lead is the chiefest part of the Ministers liuing in such places where it is gotten Which I feare me would hardlie bee yeelded as it hath bene by time immemoriall onely of pure good will if the lawe in that point were against the Ministers But the discussing and iudgement of these doubtes I must referre wholie to the reuerend Iudges because they doe surpasse my slender skill It seemeth also by the booke of Entrees that 1 Tit. Prohibitiō a prohibition lieth where tithes of corne and wood bee sued for in an Ecclesiasticall Court if an action of trespasse bee thereupon depending afore at the Common lawe De hoc quaere 2 38. Ed. 3. fol. 8. Likewise if a man couenant to pay or set out his tithes truely he must be sued in a Temporall Court vpon this acte of couenant and not else where Furthermore tithes of corne c. may be considered either before they be seuered from the nine parts in which 1 38. Edw. 3. 6. 50. Edwa. 3. 10. 38. Edw. 3. 8. case if all the corne be caried away it is said the suite lieth in a spirituall Court Or after seuerance then to carie the tithe away after seuerance from the nine parts is said to be a trespasse determinable at the Common law But I finde to mine vnderstanding great opinion against this as 2 Bract. lib. 5. cap. 16. first Bracton where he saith Cùm res fuerint decimatae fiunt de Laico catallo res spirituales For decimare must needes be to tithe and set out from the nine parts Secondarily the opinion 3 M. 22. Ed. 4. fol. 23. of the whole Court. For vpon an action of trespasse brought by a Parson against the Vicar the Vicar iustified that he tooke them for tithes being seuered from the nine parts and that he and his predecessours time out of minde had prescribed them to be due whereupon the Iudges ex officio without petition of either partie dismissed this plea vnto the Spirituall court as not perteining to their iurisdiction Soluat Apollo But it seemeth to me that the 4 27. H. 8. ca. 20. 32. H. 8. cap.
the Lay Court should haue iurisdiction betweene them and not the Spirituall Court The last cause of drawing an action for spoliation of tithes from a Court ecclesiasticall that I finde is where the tithes in demand do amount to a fourth part of the yerely commodity of the whole benefice because hereby the right of Patronage may be touched or preiudiced which right of Patronage is to be handled in a court Temporall onely and by no meanes in Ecclesiasticall For so is it testified by 1 Lindwood c. aeternae sanct V. iute-patronatus const Prou. de poenis edita 1260. Lindwood himselfe to be the olde custome of the Realme and therefore the Common law of the land But in another place he seemeth to be of opinion that this notwithstanding no preiudice towards the Patronage can grow though the suite for all the whole tithes and oblations should be prosecuted in court Ecclesiasticall For saith he 2 Lindwood in verbo quarta pars bonorum c. 2. Prou. const de foro competenti the right of Patronage is founded vpon one of these three viz. building founding or endowing of a Church So that the right of Patronage doth no way respect tithes or oblations comming to the Church but rather the building of it the ground whereon it is situate or the endowment as of glebe c. assigned vnto it This he writeth saluo iudicio meliori and vnder the same reseruation I do holde that where a great part of tithes is by suite euicted from one Church vnto another the very patronage it selfe is much preiudiced and endamaged For if the Patron happen to sell it the lesse value the benefice is of the lesse recompence shall he haue for it Besides if 3 Stat. circumspectè agatis a pension be assigned out of the benefice vnto the Patron as it may be 4 Lindwood vbi supra V. pensionem vpon the foundation the more the benefice is empaired the more hard will the pension be to recouer Lastly for somuch as the Clerke presented is by law bound to relieue his Patron fallen in decay in this respect great preiudice groweth to the Patron when a fourth or greater part of the benefice is euicted That which Markham held as is aforesaid viz. that if any part of right of tithes doe come in debate betwixt two Patrons there the Court ecclesiasticall could not holde plea seemeth to be borrowed from a consultation in the 5 Reg. pag. 46. a. Register in these words viz. we being not willing to haue any thing derogated from iurisdiction ecclesiasticall do signifie that you may proceed according to the course of the ecclesiasticall court in the plea aforesaid so as the action reach but vnto spoliation of tithes and not to the aduowson or right of Patronage of any part of the Church sauing that he speaketh of the right of any part of the tithes and the Register goeth to the right of Patronage it selfe of any part of the Church But where 6 Stat. circum spectè agatis a fourth or greater part of tithes c. is not in demaunde betwixt two Parsons of Churches there the Plea goeth to the ecclesiasticall court The 1 Goodall of the liberties of the Clergie by the lawes of the Reà lme booke of Liberties of the Clergie hereof writeth thus one Parson of a Church may sue another in case of spoliation or taking of tithes or pension in court Christian so that the matter in demaund amount not to a fourth part of the value of the Church by reason thereby the right of Patronage seemeth to come in question but if they be both of one mans Patronage they may be sued there to what value soeuer the thing demaunded shall amount vnto That Pensions out of Churches are demaundable not onely by statute but also at the common lawe in a court ecclesiasticall is made plaine by 2 Reg. pag. 47. 〈◊〉 ibid. pag. 53. 2. Goodall vbi supra two consultations in the Register and by other bookes of law But Goodall further addeth that for a pension there lieth also a writte of Annuity at the common lawe so that it is at the plaintifes election where to sue but if there he doe declare vpon the prescription and after he sue in the spirituall court by the name of a Pension the other it seemeth may then haue a prohibition For Mortuaries that they at the common lawe be of ecclesiasticall conisance reade the two consultations in the Register and the other which 3 M. 9. H. 4. M. 10. H. 4. 1. Entres title of prohibition Reg. pag. 45. b. Reg. pag. 49. a. be here quoted And likewise 4 Reg. pag. 50. a. b. for oblations detained which ought saith 5 Goodall vbi supra Goodall to be paid at their vsuall dayes Another thing due to the Minister whereby also he hath a part of maintenance is demaundable and determinable in an ecclesiasticall Court viz. the places of buriall and the Churchyard Touching the first A Parson to an 6 Li. 44. assi pa. 8. assise brought against him for a house did pleade that he was Parson of P. and that to be parcell of his Church by time immemoriall and that there had bin burying of dead bodies whereupon Persey held opinion that the court temporall ought not to take conusance thereof For the second 7 44. E. 3. lib. assi it is a good plea against the iurisdiction of the temporall court to pleade that the land is his Churchyard The true reason hereof I take to be alledged by Bracton because it is dedicated and consecrated to God where thus he writeth 8 Bra. li. 5. ca. 16. Negocium terminabitur in foro seculari si de laico feodo agatur nisi fuerit dedicatum Deo sacratum sic enim res efficietur sacra hoc autem diet non potest de re in liberam perpetuam eleemosynam data For though a thing be giuen in Francke almoigne to an ecclesiasticall person yet it remaineth of lay fee still and is not said to be consecrated to God Therfore 9 19. H. 6. 20. a trespasse done vpon a Parsons glebe land which is a francke tenement cannot be tried in a spirituall court But it seemeth that in a trespasse done in a Churchyard it is otherwise for if a 1 H. 17. H. 3. Fitz. referente tit prohib 26. man take trees that are growing in a Churchyard the Parson may sue for them in Court Christian. Sed quaere And that matters of buriall doe belong to conusance ecclesiasticall is declared by a consultation in the 2 Reg. pag. 52. b. Register very plainely CHAP. VII Ofright to haue a Curate and of contributions to reparations and to other things required in Churches NOwe when a Parish or Hamlet hath right to haue a Curate found in their Chappell to say them diuine seruice If this be denied them and no circumstance otherwise be incident thereto to
not haue conusance of the breach of an othe voluntarily taken is when there lieth an action for the matter whereof the othe was confirmatorie at the Common Lawe therefore it was holden by Brian 6 T. 22. Ed. 4. fol. 20. not long after that if a man sweare to pay twentie pounds that he oweth at a certaine time and pay it not and for the periurie be brought into the Spiritual Court there shall lie a prohibition because saith he an action of debt lieth at the Common Lawe I make this a seueral cause and reason from the former because an othe may grow vpon a Temporall matter which was the former cause and yet none action lie for it And if I promise without any consideration to giue you twentie pounds and binde it with a voluntarie othe it seemeth the Common Lawe will holde it still but pro nudo pacto and so giue none action at all But some occasion is giuen vnto me to thinke that courts Ecclesiasticall de facto howsoeuer de iure helde plea of breach of othe and of faith falsified which 1 Lyndw. in cap. aeterâ—…ae sanctio verbo fidei transgressione de poenis amounteth to asmuch in some respects as breach of a corporall othe euen when such othe or faith voluntarie taken was for confirming of a matter Temporall For this I finde not onely before the Writ was framed de recognitionibus per sacrament a non faciendis de catallis debitis quae non sunt de testamento vel matrimonio but afterwarde also and that aswel by iudgement as by opinions deliuered and reported for booke cases albeit with certaine cautions which shall by the way be touched First then that Ecclesiastical Courtes handled this cause long afore that Writte was deuised I finde in a 2 Prou. Constitutio 〈◊〉 sanctio de poenis Prouinciall Constitution made at a Synode holden at Lambhith vnder Boniface then Archbishop of Canterburie in the time of King Henrie the third Anno Christi 1260. which constitution I doe alleadge not as being of force now for the purport thereof because it aimeth at the bridling of the Kings Prerogatiue and of his Temporall Courtes but thereby historically to shewe what was then held and practised vsually The effect of it to this purpose is that whereas Prelats doe take Conisance of sinnes and of misdemeanours of such as be vnder their Iurisdiction as of Periurie or breache of faith of Sacriledge of violation of Church liberties for infringing of which euen by the Kings Charter graunted to the Church of England such disturbers doe fall into Excommunication ipso facto and of such like causes which be meerely of Ecclesiastical Conisance yet are prohibitions directed foorth out of the Kings Court and Iudges Ecclesiasticall are called thither to answere as if they delt not concerning Periurie and breach of faith but suggesting that they deale touching chattels Therefore a little after is added this viz. 3 Dicta Prou. Const. And if perhaps the King in his attachements prohibitions and summons shall make mention not of Tithes but of right of Patronage not of faith falsified or periury but of Chattelles not of sacrilege or disturbance of ecclesiasticall liberties but of some trespasse pretended to be done by his subiects or bailiffes the â—…edresse whereof belongeth vnto him then let the Prelates aforesaid make knowen vnto him that they holde no plea neither intend to do concerning right of Patronage or chattelles or any other things belonging to his court but concerning tithes sinnes and other meere spirituall matters belonging to their office and iurisdiction and tonching the safety of mens soules c. So that the trueth of such allegation being manifested to the king they thought the plea sound and sufficient to obteinea discharge from such prohibitions c. if they were in those respects onely granted Yea and Lindwood who writ anno 1423 and long after that writ was framed who also by reason he was Officiall principall of Canterbury or Deane of the Arches had good experience in these causes maketh no 1 Lindw ibidem V. periurio doubt but that matter of periury or of breach of faith arising vpon what cause soeuer so farre foorth as it concerneth doubt whether such oath were lawfull or not and doe binde in conscience or not is of ecclesiasticall conisance And therefore teacheth how the libell in that case is to be framed that no cause of prohibition be giuen viz. the partie hath damnably broken his oath made for payment of so much money vnlawfully pretending that hee is not thereby bound or tied The statute Circumspecte agatis saith defamation shal be tried in a Spirituall court when money is not demanded but a thing done for punishment of the sinne and likewise for breaking an oath without distinction whether it arose of a temporall cause or not Since the said writ we haue a iudgement in the very point in the time 2 Lib. 22. Assis. fol. 70. of king Edward the third For if a man demand a debt of tenne pounds before the Ordinarie for that the defendant plight his faith to pay it c. and hath not payd it but broken his faith the Ordinarie cannot enioyne him to pay the debt for sauegard of his faith and if he do he doth it against the kings prohibition But he ought to enioyne him other corporall penance except the partie will willingly redeeme it For so Fitzherbert 3 Fitzherberts Abridgement tit Prohibition num 2. readeth those last wordes of exception more truely then my booke of Assises as it is printed carying indeed therein no sense at all The like appeareth in the reigne of king Henrie the sixt for there it 4 34. H. 6. 70. vt Brooke allegat tit Iurisdiction num 2. was holden that if a man buy an horse of me and sweare vpon the Euangelists to pay me ten pounds for him such a day and pay it not I shall haue action of debt at the Common law and also a citation pro laesione fidei at the Spirituall law and shall not therein offend the Common law because they are diuers things As for opinions afterward we finde it was held by Brian and Litleton in the time of K. Edward the fourth none there gainsaying it that 1 M. 20. Ed. 4. foâ—… 10. in laesione fidei arising vpâ—… a temporall matter the Spirituall court might punish it ex officio but not at the suite of the party To the same purpose also Mordant said in the time of K. Henrie the seuenth 2 T. 12. H. 7. fol. 22. that if a man be sued in a Court ecclesiasticall by a party pro laesione fidei in not paying a summe of money promised there shall lie a prohibition but if the Iudge ecclesiasticall shall do it ex officio then no prohibition shall lie which no man gainsaid or impugned These two opinions lest they should seeme to crosse the former iudgement in the booke of
assises and the other booke case of 34. H. 6. both which admit a party to sue in the Court ecclesiasticall do seeme to me only therefore to reiect a partie and to require proceeding ex officio Iudicis because it was presumed that a party would not prosecute to haue the sinne alone punished but rather for satisfaction of the thing promised to him Yet this in truth may be otherwise by the law ecclesiasticall So that vpon all that which hath herein bin last spoken it might probably seeme to some that punishment of periury or breach of faith euen arising vpon a temporall cause should be still by the Common law of ecclesiasticall conisance so that penance for the sinne be but enioyned and no temporall amends required which doubt is to be referred to the reuerend Iudges resolutions That disturbance of diuine seruice is also punishable by iurisdiction ecclesiasticall the statute thereof made in the time 3 1. Mar. cap. 3. of Q. Marie doth prooue for though it do prouide punishment temporall therefore yet it reserueth the iurisdiction that Ordinaries had for punishment thereof by lawes ecclesiasticall Not to frequent or come to diuine seruice at times appointed is declared to be subiect to proceeding and censures ecclesiasticall aswell as to other punishments by the statute 4 1. Eliz. cap. 2. for Vniformitie of Common prayer and so is both that and neglect of the Sacraments by the statute De excommunicato capiendo heeretofore often alleged prooued to be of Ecclesiasticall conusance Long afore that statute vpon a prohibition brought a consultation 1 Reg. pag. 50. a. b. was granted whereby the Ordinaries proceeding ex officio against one that refused to receiue the Communion is allowed and warranted And so doth the litle 2 Goodall of the liberties of the Clergie Treatise of the liberties of the Clergie report this offence to be of Ecclesiasticall conusance Thus much touching offences ecclesiasticall being referred to impietie towards God CHAP. IX That simony vsury defamation or slander beating of a Clerke sacrilege brauling or fighting in Church or Churchyard dilapidations or waste of an Ecclesiasticall liuing and all incontinencie are punishable by Ecclesiasticall authority and how farre AMongst such crimes as be offences against iustice I do place simony first as participating also not a litle with the former sort yet rightly sorted hither because it is as a buying and selling of such things as be not in trueth res mancipi as the olde Romanes spake things lying not in commerce betweene men to be bought and solde This fault the said 3 Ibid. in fine statute De excommunicato capiendo sheweth to be punishable by iurisdiction ecclesiasticall That vsurie is likewise it doth appeare by authoritie of diuers Parliaments The king and his 4 15. E. 3. cap. 5. shall haue the conusance of the vsurers dead and the Ordinaries of holy church shall haue the conusance of vsurers on liue as to them apperteineth to make compulsion by the censures of holy church for the sinne and to make restitution of the vsuries taken against the lawes of holy church By annother later act made against vsurie 5 11. H. 7. cap 8. there are reserued to the spiritnall iurisdiction their lawfull punishments in euery cause of vsury And so is it expresly also mentioned in the aforenamed statute De excommunicato capiendo but this iurisdiction is since somewhat restreined because 6 13 Eliz. cap. 8. vsurie can not now therby be punished nor corrected except it reach aboue the rate of tenne in the hundred by yere By a consultation in the 7 Reg. pag 49. b. Register which was granted in allowance of proceeding against one for his vsury it is thus sayd in this behalfe Quta in articulis Cleri continetur quòd si Praelati imponant alicui poenitentiam pro peccato prohibitioni nostrae non est locus vobis significamus quòd ad correctionem animae praefati S. in hac parte viz. pro vsura dum tamen nihil aliud attentetis quod cedat in laesionem dignitatis nostrae in curia Christianitatis procedere poteritis prohibitione nostra non obstante But this fault sinne of Vsurie is mixti fori that is to say in some respect is of temporall in other regard of eccllesiasticall conisance not only by the statutes of the Realme as you haue heard but also euen by the law ciuill albeit in a diuers sort For in countreyes where that law hath place if it be 1 D D. in l. Titia ff soluto matrimonio called in question whether a contract be vsurarious or not the court ecclesiasticall doth determine this but for to pronounce such a contract void and to execute that sentence belongeth to a temporall court For cause of defamation it is 2 Stat. circumsp agatis 13. Ed. 1. recorded by an olde statute that it is alreadie granted it shall be tried in a Spirituall court And againe In 3 Artic. cleri 9. Ed. 2. cap. 4. defamation prelates shall correct by penance corporall the kings prohibition notwithstanding but if the offender will redeeme the penance with money the prelate may freely receiue the money though the kings prohibition be shewed By the preamble also of the statute for 4 23. H. 8. cap. 9. citations it is plainely argued that defamations belong to the comsance of iurisdiction ecclesiasticall so they be duely and according to law prosecuted Also by the bookes of Common law it appeareth throughout the arguments made in the great case of prohibition in the time of 5 T. 12. H. 7. fol. 22. Henry the seuenth that the suite for defamation belongeth to ecclesiasticall iurisdiction for there aswell by those Sergeants that stood against the consultation as the others and by the Iudges also that granted the consultation the originall cause being defamation it is yeelded that the punishment of slander or defamation is belonging to the Spirituall law Whereas there is a Prouinciall constitution that decreeth a slanderer or defamer of another to be ipso facto excommunicate this is allowed by 6 Reg. pag. 49. a consultation in the Register vnto a court ecclesiasticall And it is there added to this effect viz. Si in causa diffamationis ad poenam canonicam imponendam agatur tunc vlterius licitè facere poteritis quod ad forum ecclesiae noueritis pertinere prohibitione nostra non obstante One that sued 1 Reg. pag. 51. 2. another in a cause of diffamation in court ecclesiasticall was there condemned in expenses to the defendant who was absolued for that the plaintife failed in his proofes The plaintife to hinder the execution of the sentence and to escape without expenses procured a prohibition Yet vpon debating of the matter a Consultation was herein also awarded So that wee see both the Principall and the Accessarie cause to be of ecclesiasticall conisance If saieth 2 Liberties of the Clergie by the lawes of
though statutes for the most part bee not to the restraining and changing of the lawe of the realme His first speciall obiection doeth answere it selfe For if the Partie desire commutation of corporall penance into pecuniarie especially if he be a free man the Ordinarie may lawfully accept of that commutation and being so vnderstood circumspectè agatis iumpeth therein both with 2 Articuli Cleri 9. Ed. 2. cap. 2. 3. 4. lawe and practise Touching his second obiection against it of a pension I referre my selfe to that which hereof hath bene spoken in the 6. Chapter of this first part As concerning his alleaged booke of 19. Edward the 3. reporting it to be no Statute I must tell him that hee hath a larger printed booke then mine if hee haue any reports either of the 19. or 20. yeeres of king Edw. 3. But whatsoeuer either he that was Author of those two little Treatises or any other priuate or particular persons doe thinke may be collected or probablie spoken thereof I trust they will all be contented to submit their iudgements to an Acte of Parliament Therefore to cut of all doubts at once in this behalfe let them read the 3 1. 2. Ed. 6. 〈◊〉 cap. 13. in a Prouiso 〈◊〉 Acte for true paiment of tithes made in king Edward the 6. time where both Articuli Cleri Sylua caedua de regia prohibitione and also Circumspectè agatis bee called Statutes and are appointed to remaine in their entire as they were afore that new statute If a man lay 4 Stat. circums agatis 13. Ed. 1. violent hands on a Priest this offence is punishable also by ecclesiasticall Iudges Therefore it was determined in another Parliament that for excommunication pro violenta manuum iniectione in Clericum before 5 Art Cleri 9. Ed. 2. ca. 3. a Prelate where penance corporallis enioyned if the defendant will redeeme his penance by giuing money to the Prelate or partie grieued it shall be required before the Prelate and the kings prohibition shall not lie This seemeth to haue bene there determinable by some reports at the Common law euen afore these statutes 6 H. 7. H. 3. referente Fitzh tit Prohibition nu 30. For if a man enter into S. Iohns place and beate the brethren there and take their chattels for this violence he shall be sued in Court Christian and so it was adiudged by the Court. In a Consultation granted after a prohibition in this case was brought it is 1 Reg. fol 49. b. thus cōteined in the Register viz. si in causa iniectionis manuum violentarum in clericum in possessione Clericatus existentem quémque alter sciuit esse clericum non de violata pace nostra sed de excommunicatione ad correctionem animae tantummodo agatur tunc prohibitione nostra non obstante vlteriùs in eadem facere poteritis quod secundum forum ecclesiae de iure fore videritis faciendum But I find two cases where laying violent hands on a Clerke shall not bee sued in a Court Ecclesiasticall but there will lie a prohibition The first is If a Clerke be 2 Regist. fol. 42. 51. arrested at the Common law if thereupon he sue in a spirituall Court pro violenta manuum iniectione in Clericum there lieth Prohibition Another case is 3 T. 11. H. 4. fol. 241. in alijs libris vel 88. vel 85. when a man is excommunicate for laying violent hands on a Clerke if the spirituall Court denie absolution till amends bee made to the partie for the batterie a prohibition also will be granted because it shall be entended he which sueth doeth it to recouer damages But though it be at the suite of the partie if onely the punishment of the offence and not any amends be sued for it is determinable in a Court ecclesiasticall albeit the 4 Art Cleri 3. 6. Temporall Court haue also the debating of the matter touching the amends and the batterie For saieth Thirning if a partie sue onely 5 Ibidem to enforme the Court that the other hath laid violent handes vpon him being a Clerke to the intent the sentence of holy Church may goe against him to be excomunicate for the wrong done to holy Church and not to recouer dammages peraduenture it might be tollerable To which an other booke agreeth 6 H. 22. Ed. 4. fol. that if a man beate a Clerke and he sue him in the spirituall Court for his sinne of excommunication he doeth well but if he sue to haue the matter there examined for amends there lieth a prohibition For we finde a 7 Entrees tit Prohibition precedent of a Consultation granted euen where a partie sued in Court Christian proviolenta manuum iniectione in Clericum And so is it testified by the 8 Gooddall of the Liberties of the Clergie booke of the Liberties of the Clergie by the lawes of the Realme in these words A Priest may sue to haue him excommunicated or corporallie punished that laid violent hands vpon him but not to haue amends Neuerthelesse if 9 Gooddall ibid. a man put to corporallpenance for diffamation or for beating a Clerke to redeeme his penance wil agree to pay mony to the partie damnified after contrary to his promise will not pay it he may then be sued by the partie damnified euen for the mony in a court ecclesiasticall And not onely the partie may thus sue to haue him punished but the 1 M. 20. Ed. 4. 10 Spiritual court may also punish it exofficio as Brian and Litleton there did hold To this accordeth the said litle booke where is sayd that the 2 Gooddall ibid. ecclesiasticall Iudge may of Office cite for laying violent hands on a Clerke to punish him corporally but not by money Whose opinion is well confirmed by a Consultation in the Register to that purpose For thence is 3 Reg. sol 51. 2. gathered both that such a beater of a Clerke doeth incurre excommunication ipso facto and that the ecclesiasticall Iudge ex Officio may lawfully proceed to enioyne him corporall punishment Touching Sacrilege that it is also punishable by lawe in a Court ecclesiasticall two adiudged cases may bee alleaged out 4 M. 4. H. 3. per Fitz. Prohib nu 14. of Fitzherberts great Abridgement For if a man take goods out of the Church or Churchyard hee that hath propertie may sue him in a Court Christian and may compell him to stand to the sentence and iudgement of the Spirituall court for this offence And againe 5 H. 17. H. 3. per Fitzh tit Prohib nu 26. If a man take trees that are growing in the Churchyard the Parson may sue for them in court Christian and for the sacrilege also Lyndwood speaking of Sacrilege 6 Lyndw. in V. Sacrilegio c. aeternae sanctio de poenis saieth It is not a crime meerelie ecclesiasticall because the conisance thereof
may belong to a temporall Iudge at least touching the corporall penaltie but not concerning the censures of the Church that ought to bee laied vpon such 7 15. 6. Ed. 6. cap. 4. Concerning fighting quarelling and brawling in Church or Churchyard the Ordinarie in some degree is to punish it by suspension ab ingressu ecclesiae in a laie man and from ministration in his office in a Clerke and in another degree in either sorte Laie or Ecclesiasticall by denouncing the partie offending to bee excommunicate ipso facto by vertue of that Statute Dilapidations likewise waste made vpō a liuing Ecclesiasticall are determinable 8 13. Eliz. ca. 10. punishable by Ordinaries For the Statute made in her Maiesties time for remedy in Dilapidations prouideth that as afore by the lawes Ecclesiasticall iust actions and remedies might bee had against executors and administrators of deceased incumbents so they should by vertue thereof bee vsed against alienees and donees of the goods of such incumbents The Treatise of the Clergies liberties saieth that for 1 Liberties of the Clergie by the lawes of the Realme Dilapidation the parson may sue in courte Ecclesiasticall the executors of his predecessor So at the 2 M. 2. H. 4. sol 9. Common lawe Tirwhit did hold that if an ecclesiasticall person make waste of his benefice he shal be deposed as a Dilapidator of his Church But deposition cannot be iustified but by authoritie ecclesiasticall Those crimes which I sayd were opposite to sobrietie in a mans owne selfe are also punishable by ecclesiasticall authoritie 3 Stat. Circumspectè agatis 13. Ed. 1. For the Clergie are not to be punished for holding plea in court Christian of such things as bee meerelie spirituall that is to wit of penance enioyned for deadlie sinne as fornication adulterie and such like In which words of such like I doubt not but other incontinencies as Incest Stuprum and Polygamie be also vnderstood being all more grieuous then fornication and two of them more execrable then adulterie And so doeth Lyndwood interprete the word huiusmodi such like that 4 Lyndw. V. huiusmodi c. Circumspectè de foro competenti is to say saieth hee Incest whoredome and others which be contained vnder the sinne of Lecherie And to these are to bee added other crimes which also are to bee handled and punished in a court ecclesiasticall as namelie Sacrilege Usurie Heresie Simonie and Periurie to 5 c. Ecce 23. q. 4. which an old Canon also addeth such offenders as be Inspectatores nugarum and consulters of Starre-gazers Phanaticall persons Wisardes Fortune-tellers Drunkards and Idolaters And to make it more plaine that all vnlawfull companie of man and woman not being capitall by the lawes of the Realme is subiect to the Iurisdiction ecclesiasticall the 6 5. Eliz. ca. 23. generall worde of Incontinencie which comprehendeth all is vsed in the statute De excommunicato capiendo In the 7 Reg. sol 45. a. 57. b. Register there bee two precedents of Consultations granted in causes of Fornication agaynst which in both the Iudge also proceeded of office And the treatise of Clergie liberties saieth 1 Gooddall of Clergie Liberties Though a bishop may not visite the Kings free Chappell yet he may cite and punish the Chaplaine thereof for keeping a concubine Heare also what another olde Treatise written by a common Lawyer in those times 2 An answere to a letter cap. 1. Printed by Tho. Godfrey tempore H. 8. saieth in this behalfe viz. the Clergie ought to haue correction as of crimes meere spirituall of auoutrie fornication Simonie and Vsurie and to order matrimonie tithes oblations and periurie in some case and of diuers other things whereof it is no doubt but they haue holden plea in times past rather by a custome and by sufferance of princes then for that they be meere spirituall or that they had authoritie by the immediate power of God So that they bee by him yeelded of long time to haue bene of ecclesiasticall conisance CHAP. X. That the matters and crimes here reckoned bee also of ecclesiasticall Iurisdiction and proofes that any subiect laie or other may be cited in any cause ecclesiasticall THere doe yet remaine sundrie points which in the second Chapter of this part I haue set out as being of ecclesiasticall conisance hitherto not spoken vnto purposelie First then for ordaining of reall compositions being a matter of voluntarie iurisdiction and disanulling of them if they haue bene made contrarie to lawe and right which is for the most part of Iurisdiction contentious we haue in the Register some testimonie For 3 Reg. fol. 51. b. whereas an Ordinarie had made an ordination or reall composition for certaine Chaplains to serue from time to time in a Church which were not found by those that ought the bishop hereupon ex officio proceeded to interdict the Church and vnto other Canonicall paines And though thereupon a Prohibition was brought yet was it reuersed vpon debating by consultation and the bishops proceeding allowed for lawfull Touching 4 Reg. fol. 50. a. disanulling of a reall composition vnduely made in a Consultation there is thus conteined Significamus quod in negotio adnullationis Ordinationis pro Pensione tanquam iniquae non rationabiliter factae non de laico feodo in curia Christianitatis agitur procedere vlteriùs facere poteritis c. prohibitione nostra nonobstante Next follow the censures ecclesiasticall whereby Ordinaries punish or vrge execution of their sentences or decrees First suspension ab ingressu ecclesiae is 1 5. 6. Edw. 6. cap. 4. shewed to be an ecclesiasticall censure by a statute of king Edward the sixt forbidding brauling in Church or Church-yard The other suspension indistinctly taken whether ab officio tantùm or ab officio beneficio is mentioned for a censure ecclesiasticall by 2 1. Eliz. cap. 2. a statute 1. El. and by her 3 Iniunctiones in fine Highnesse Iniunctions Interdiction of a Church is also prooued so to be by the first allegation out of the Register in this chapter That Sequestration is another censure ecclesiasticall and the conisance of the violation thereof of that iurisdiction is prooued cleerely by a consultation in the Register For there a certeine Parishioner 4 Regi fol. 44. b. had cut downe Syluam caeduam not paying but deteining the tithe from the Parson Hereupon the bishop of Elie his Officiall did sequester the said wood cut downe The Parishioner did breake and violate the sequestration therefore the Officiall proceeded with him in causa violationis sequestri the defendant purchased a prohibition Neuerthelesse vpon discussing of the matter a consultation was granted in these wordes Licitè procedere poteritis quatenus de 5 Concordat Clem. vnica de sequest possess quoad violat interdicti Clem. grauis de sententia excomm violatione sequestri syluae caeduae excisae ratione
decimae inde rectori ecclesiae debitae iniustè detentae non solutae per vos sic interpositi agitur vlteriùs facere poteritis quod ad forum Ecclesiasticum noueritis pertinere That excommunication is a censure Ecclesiasticall almost all allegations afore and consultations in the Register do shew That which next commeth to handling heere is that 6 Const. prou Bonifacij c. a nostris de concess praebendae ibi Lindwood the Parson and Vicar haue the appointing of the Parish Clerke who being so appointed is to haue the customable fees of the Parishioners for his seruice or else he may sue for them in Court ecclesiasticall That Constitution prouinciall calleth these eleemosynas consuetas and I thinke they may be comprehended vnder the word 7 Reg. fol. 52. b. Largitiones charitatiuae for which the Register hath a consultation as being of ecclesiasticall conisance For goods as a pound of waxe c. due to a Church and deteined 1 Reg. fol. 50. b. the Register alloweth the Church-wardens to sue in court ecclesiastical and to procure that the church may for them be againe put in possession Now follow in this place certeine crimes of ecclesiasticall conusance and first such as be contrary to pietie towards God namely blasphemie which 2 c. 2. de maled though in partes on the other side Sea where Ciuill law hath place it be mixti fori that is enquirable and punishable aswell in the temporall as in the ecclesiasticall court yet in this Realme I haue not learned of any punishment thereof or for swearing by any temporall power Also idolatrie and errour in religion which are shewed to be of ecclesiasticall conusance by 3 5. Eliz. c. 23. the statute De excommunicato capiendo Likewise Apostasie from Christianitie which is the highest degree of heresie and therefore subiect to the same Court and penaltie Lastly violation and prophanation of the Sabboth to be punishable by a Court ecclesiasticall both the continuall custome of the Realme and the statute of Circumspectè agatis which doeth allow them to enioyne penance for sinne doeth make very manifest But we are to vnderstand as 4 Lindwood in c. circumspectè de foro competenti V. mort peccato Lindwood also well admonisheth that euery mortall sinne is not of Ecclesiasticall conusance for then faith hee the iurisdiction of the temporall sword were wholly ouerthrowen seeing you could hardly name any cause which vnder colour of the sinne might not be brought vnto conusance ecclesiasticall But the said statute is to be vnderstood of such sinnes the punishment whereof doth belong properly to a Court ecclesiasticall That is all such as I doe gather for which no remedie is prouided at the Common law nor by the same forbidden to be dealt with by a Iudge ecclesiasticall And of this sort is subornation of periurie in an ecclesiasticall court and matter tending to the breach of iustice and vnlawfull sollicitation of a womans chastity drunkennesse and filthie speech referred to the violation of sobrietie Violation of a sequestration or of an interdiction is in this chapter touched afore The hindering and disturbance to carry tithes by wayes due and accustomed is handled in the sixt chapter of this part For sundry crimes the court Ecclesiasticall may enioyne penance corporall but not pecuniarie and if it do there lieth a prohibition 1 Aâ—…tic Cleri 9. Edw. 2. cap. 2. Notwithstanding if Prelates enioyne a penance corporall and the partie will redeeme such penances by money if this money so promised be demanded before a Iudge spirituall the kings prohibition shall holde no place And againe for 2 Ibid. cap. 3. excommunication before a Prelate for laying violent hands on a Clerke where corporall penance is enioyned if the defendant will redeeme it by giuing money to the Prelate or to the partie grieued it shall be required before the Prelate and the Kings prohibition shall not lie Furthermore 3 Ibid. cap. 4. in defamation Prelates shall correct in maner aboue said the Kings prohibition notwithstanding first enioyning a penance corporall which if the offender will redeeme the Prelate may freely receiue the money though the Kings prohibition be shewed And to the same effect there is a consultation in the Register 4 Reg. fol. 53. b. viz. in a plea for recouerie of money promised to a Prelate or to the partie grieued for redeeming of corporall penance imposed for laying violent hands on a Clerke you may lawfully proceed our prohibition notwithstanding When a 5 Reg. fol. 55. a. partie proceeded with for some offence in Court Ecclesiasticall submitteth himselfe to such order as the Iudge shall take with him either at his absolution from the sentence of excommunication or otherwise doth after refuse for such his refusall he may be dealt with and punished in Court ecclesiasticall and may be vrged by censures to performe the order according to his submission which the Ordinary shall set downe Likewise may an Ordinary deale for contempt of his decrees or iurisdiction as may be perceiued both by the said consultation against one Lindsey last alleged and 6 Reg. fol. 57. b. also by another reported in the Register And as Ordinaries may deale in the causes afore specified so may they also in the necessarie accessories and dependences of those causes And therefore they may adiudge expenses against the partie ouercome in law and by censures driue him to payment of them Example heereof we 7 Reg. fol. 51. a. haue in the Register where the plaintife in a cause of defamation failing in proofe was condemned in expenses and could not auoid the paiment of them by the prohibition which he brought therefore in another precedent there it is thus said Iuri est 8 Reg. fol. 53. b. Goodall of the liberties of the Clergie by the lawes of the Realme consonum quod vbi cognitio causae principalis ad forum ecclesiasticum pertinet eius accessorium pertinere debeat Vel sic iuri est consonum quod cui attribuitur cognitio in causa principali eidem attribui debet executio eiusdem And there it is further said to this purpose Si praedicti 40. S. pro misis expensis in causa diffamationis adiudicati fuerint tunc ad executionem inde faciendam licite procedere poteritis prohibitione nostra non obstante Fees due in Ecclesiasticall Courts and Curates and Clerkes wages deteined come next in this place to be prooued of Ecclesiasticall conusance I must confesse that for the two former of these I doe not call to minde nor hitherto finde by turning of my few bookes of the Common law that any thing is written of them Now seeing that from time to time as occasions haue fallen out of due fees there to haue bene deteined they haue bene demandable in the same Court ecclesiasticall without bringing prohibition it is some good inducement to leade vs to thinke that they haue bene without
they doe neuerthelesse without cause refuse to come and to testifie a trueth For then goeth a citation called Compulsories for them sub poena iuris to come and depose their knowledges in such a matter betwixt such parties So that the citation is not ad subeundum iuramentum albeit when they come they are not to set downe any deposition but vpon othe because it is iuris diuini naturalis gentium quòd non credatur testi iniurato Also the Authour of this opinion should haue done well to haue signified whether a Lay man being come thither without citation might then be vrged to take an othe Therefore if the Authour hereof wil hereby maintaine any controuersie against Courts Ecclesiasticall the issue must be either that to make the Defendant put in his answere vpon his othe so farre foorth as he by Lawe is bound or to make witnesses testifie vpon their othe is a thing contrary to the Lawes of the Realme But it appeareth by discourse vpon the former opinion in how many sundry causes of litigious Iurisdiction besides Testamentarie and Matrimoniall Ordinaries may holde Plea by the Lawes of this Realme according to the course of the Queenes ecclesiasticall Lawes That the ecclesiasticall Lawes doe require this course with the cautions aforesaide I thinke no man that knowes any thing in that Lawe will make doubt A Plea is a conflict in cause of Iudgement betwixt one that affirmeth and another that denieth There be but two wayes besides the parties confession which is not properly called a proofe to prooue any thing that is by witnesses or by a publicke instrument called by the Common Lawe matter of Record Now if witnesses might not be vrged to testifie vpon othe in any causes but Testamentarie or Matrimoniall then could no Plea be holden in any other cause when the chiefest and most vsuall meanes of proofe in recent facts be taken away This libertie and priuiledge of holding Plea in the causes afore shewed and in this maner as is now claimed 1 24. H. 8. c. 12. by the goodnes of Princes of this Realme and by the Lawes and customes of the same as a statute rehearseth appertaineth to the Spirituall Iurisdiction of this Realme and hath bene in all ages vsed in Courtes Ecclesiasticall without impeachment as by the Recordes thereof may appeare And therefore vpon any singular conceite newly taken vp by some priuate persons it is not safe to be nowe thus questioned and oppugned There is an olde Statute in force as I take it that may greatly bridle such newe quirkes except men were marueilous well assured of the groundes of so great and so generall an innouation For it is enacted that 2 15. Ed. 3. c. 3. great Officers about the King and in his Courtes of Iustice shall from time to time forwarde bee sworne when they shall be put in Office to keepe and mainteine the priuiledges and franchises of Holy Church c. Can it with any colour be intended that the Common Lawe doth allow Courts ecclesiastical to hold plea in those sundry other causes which we haue hitherto proued to be ecclesiasticall and yet that it wil not allow them any meanes or possibilitie whereby to hold such pleas For if no Lay man might be cited to an ecclesiasticall Court and there ordered to take othe in any other cause then those two then first the partie conuented if by Lawe he needed not would neuer answere to the Libel vpon his othe Yet hath this bene a course continually practised and by Lawe so appointed not onely in Ecclesiasticall but also in all Courtes of the Ciuill Lawe both here and throughout the rest of Christendome Againe if no Lay witnesses may be called to testifie in any other matter then should most men in those causes be hereby either quite foreclosed of their right and many grosse sinnes should passe wholly without reformation or punishment or else all such matters must needes be prooued onely by such witnesses that be of least indifferencie and therefore of least trueth and credite For those men be alwayes most indifferent which either be friendes or at least be no euill-willers to either partie Nowe seeing euery deposition must needes tende to the grieuance or hinderance of the one partie or the other can it be presumed of him which loues both and doth wish alike well vnto them that he will willingly and gratis without any processe come and depose and thereby doe one of his friendes a displeasure there resteth then that onely such will offer themselues to testifie who either be enemies vnto both or friendes to one and either enemies or strangres to the other and howe can these be vpright indifferent witnesses or else such who be meere strangers vnto both sides but it doth most rarely happen that meere strangers vnto both shal be able to depose any thing to purpose and more rare will it be that such will offer willingly of them selues to come in ad testificandum Besides these and many such like absurdities necessarily ensuing this opinion if it be yet still stoode in that the Common lawe permittes compulsion of lay men whether parties or witnesses to take othe in causes testamentarie and matrimoniall but denies it in all other cases let vs consider what may be imagined for a probable reasō of such differēce in proceeding betwixt causes that belong to the conisance of the selfe same courte For I haue read and often heard that the Common lawe is grounded vpon good and sound reason And it cannot be said in this case quamuis durum sit tamen ita lex scripta est for that this is no statute or written lawe but onely the reported opinion of one man whence all the rest haue since taken it Was it then meant to giue vnto subiects an ample meanes of comming by their rightes in these two causes but to restraine or debarre them in al other as namely for tithes and other rightes demaundable in ecclesiasticall courtes or was it the purpose of that lawe to haue men stand conuicted of most grieuous crimes that be of ecclesiasticall conisance as happely of Heresie being neither by them confessed nor yet proued by sincere and vpright witnesses but onely by such as doe thrust them selues in to beare witnesse whom not onely common speach but also sundry statutes doe terme Accusers and therefore doe hold at least for parties and men not indifferent May not many other ecclesiasticall causes be of as great importance preiudice as perhaps a will of goods vnder xl s. or a trifling legacie or a x. pound matter promised with a woman in mariage and if the law had bin so could no man hit of it from the Conquest vntill our fathers time when Fitzherbert writ his nouanatura breuiū was none of skil in Edw. the 1. time to put it into the statute of circūspectè agatis or in Ed. the 2. times to mention it in the statute of Articuli Cleri did none reade
it in the Register that vnderstoode it before Fitzherbert or was it not put downe there but in some late copies as is most likely And after he had set it downe would not the law in that behalfe haue bin vrged against sundry Bishops that practised the contrary in K. Hen. the 8. time continually since if that opinion had bin holden for good lawe Touching this matter the Treatisour saith thus in effect that the not coÌ„pelling of witnesses to sweare to depose their knowledges brings none other preiudice but that the partie plaintife faileth in his proofes thereby Why is that no small preiudice for a man which hath in deede a right to haue the causes goe against him through the wilfulnesse of witnesses y t neither will come of theÌ„selues nor may be coÌ„pelled by others as this opinioÌ„ importeth Is not this to giue cause of acquiting the wroÌ„g doer of coÌ„demning him that hath the very right and doth it not nourish or at least tolerate that sinne in the witnes which iâ—… coÌ„demned by the law of God in these 1 Leuit. 5. V. 1. wordes viz. If any haue thus sinned that is if he haue heard the voyce of an oath he can be a witnes whether he hath seene or knowen of it if he doe not vtter it he shall beare his iniquitie In which place I doubt not but all such be included who knowing the matter which is in examination or question before a Magistrate shall refuse neuerthelesse being duely called to giue testimonie to the trueth according to their knowledges The Treatisour further saith that it may be sufficieÌ„t for a court ecclesiastical to haue no better meanes for bringing in of witnesses to testifie then teÌ„porall courts haue Truely if they might be allowed the same I thinke none of them would desire any better For when a witnesse is vnwilling to depose vnlesse he be vrged by processe what is more vsuall in teÌ„porall courts then to haue a sub-poena to charge him to appeare and to testifie at such a time place But because by this his saying it seemeth he entendeth that the course of vrging witnesses to testifie as is claimed alwaies hath bin vsed by courts ecclesiasticall conteineth some repugnancie against the lawes of the Realme therefore for cleering of that point I wil briefely shew that it is not so much as a diuerse and much lesse a contrary or repugnant order vnto the lawes of this Realme First for practise what is more frequent then for Iustices of the peace to binde men by recognisance to giue in euidenc at Sessions or Assises touching supposed offendours It would be ouer tedious to set downe the sundry cases reported by the booke of Assiles to this effect viz. that where a deede is pleaded denied and processe against the witnesses is desired that it shall go out to call them to testifie It wil be sufficient to referre you to 1 Brooke titulo testmoignes Brookes AbridgemeÌ„t where they be gathered yea though the actioÌ„ be 2 1. H. 6. 5. personall if a deede with witnesses at it be pleaded denied processe shal be awarded for the witnesses per Markham Rolfe Be not Iurours also that be summoned to passe on trials fined if they appeare not and what more equitie to amerce or fine them then necessarie witnesses seeing trials can no more be made without euidence then they may without a Iurie By statute 3 23. H. 8. ca. 3. Iurours for triall of Periurie are appointed to be fined if they refuse to make apparance Likewise if any 4 5. Eliz. ca. 9. witnesse be serued to testifie in a court of Recorde and hauing tendred according to his countenance his necessarie charges doe not appeare he shall forfeite tenne poundes and make further recompence according to the losse So that we see it is no contrary or repugnant course to the Common lawes to haue witnesses vrged to testifie being there also practised But if here it be replied that the Common lawe forbiddeth it vnto courtes ecclesiasticall sauing in those two cases it will easily appeare that it is so farre from being forbidden that it is indeede allowed vnto them by Common lawe and by statutes There be very many precedents in the Register of consultations graunted vpoÌ„ debating of the seuerall matters there after that prohibitions had bene purchased in euery of which almost general wordes of allowance of the maner of proceedings according to the lawe ecclesiasticall be conteined as 5 Reg. in br orig fol. 56. b. fol. 57. b. namely allowing of the proceeding iuxta Canonicas saÌ„ctiones setting in the end of euery coÌ„sultatioÌ„ there except two or three these or the like wordes in effect viz. Cicitè procedere vlteriùs facere poteritis prout ad forum ecclesiasticum noueritis pertinere prohibitione nostra non obstante Nay let an instance be giuen if any man can doe it where of olde any such prohibition hath gone foorth and not bin reuersed againe by consultation yea almost where it hath gone foorth at all onely for censuring a wittiesse that refused to come in and testifie in any other matter of ecclesiasticall conisance besides testamentarie and matrimoniall And yet hath it bin in continual and vninterrupted practice for so long time as any ecclesiasticall actes now remaining do mention pleas in those courtes to be holden Iustice Brooke in his Abridgement both testifieth that by the Ciuill lawe witnesses which wil be holden indifferent should not come till they be called and setteth it downe as a matter woorth the noting whereby may be gathered his allowance thereof The 1 Brooke tit Corone nu 220. wordes be these By the Ciuill lawe Accusers be as parties and not as witnesses for witnesses ought to be indifferent and not to come till they be called but Accusers doe offer themselues to Accuse c. quod nota That by the Ciuill and Canon lawe witnesses may be vrged to giue testimonie and in what sort wil appeare by this distinction By the Ciuill lawe 2 l. si quando C. de testibus witnesses may be vrged to giue testimonie and that without distinction whether the cause be Ciuil or Criminall be Ciuilly or Criminally directly or by way of exception moued except their persons be priuiledged As by 3 l. inviti ff de testibus the law Ciuill men of 70. yeeres of age be in this behalfe viz. that they may not against their willes be vrged to testifie By the Canon lawe if the cause be Ciuill and not criminall witnesses may be compelled without distinction also except they be persons priuileged Neuerthelesse euen 4 Panor min c. dilectorum de testibus cogendis priuileged persoÌ„s may be coÌ„pelled in want and defect of other proofes that the trueth may be found out If the 5 Alphon. Villag lib. 3. ca. 15. conclus 12. cause be criminall whether Ciuilly or criminally moued so the action be
owne foot Sed amicus Plato amicus Socrates magis amica veritas The copy of this writ I finde reported and set downe in two seuerall books In the 2 Register tit prohib Register contrary to the vse of other precedents there is deliuered but a parcel as seemeth of a writ in two or three lines in these words viz. Rex vicecomiti S. Praecipimus tibi quòd non permittas quòd aliqui laici ad citationem talis episcopi aliquo loco conueniant de caetero ad aliquas recognitiones faciendas vel sacramenta praestanda nisi in causis matrimonialibus testamentarijs T. c. And in the margent thus Prohibitio ne latci conuentant ad citationem episcopi ad recognitionem faciendam But the precedent of attachment framed vpon this writ runneth generally without excepting so much as these two causes euen as if a lay man whether partie or witnesse might not be vrged to answere or testifie or to take an oath except he lust in any cause ecclesiasticall at all For it is 1 Reg. in br orig fol. 36. b. tit Prohibitiones thus viz. Rex vicecomiti Salutem Pone per vadium c. talem episcopum quod sit coram iusticiarijs nostris c. ostensurus quare fecit summoueri per censuras ecclesiasticas distringi laicas personas vel laicos homines foeminas ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis in graue praeiudicium coronae dignitatis nostrae regiae necnon contra consuetudinem regni nostri habeas ibi nomina pleg c. T. c. And in in the margent it is entituled thus Attachiamentum inde Also in the Abridgement of statutes 2 Abr. Rastall cit prohib consult nu 6. gathered by Rastall I do finde a precedent of a prohibition set downe at large mentioning a writ to like purpose to haue bene sent to the shiriffe but none attachment thereupon where of those words rehearsed in the Register though something altered seeme to be a parcell In that point it is thus Rex episcopo Norw Salutem c. Mandauimus etiam vicecomiti nostro comitat Norf. Suff. c. quòd non permittant quòd aliqui laici in Balliua sua in aliquibus locis conueniant ad aliquas recognitiones per sacramenta sua faciendas nisi in causis matrimonialibus testamentarijs Whereby these three varieties do appeare betweene this and the former First that which is said heere by way ofrehearsall that the king had sent such a writ to the shiriffe seemeth in the Register to be set downe as conteining part of the writ it selfe directed to the shiriffe Secondly that which is here recognitiones facere per Sacramentum is in the Register with the disiunctiue viz. ad aliquas recognitiones faciendas vel Sacrament a praestanda Thirdly in the Register these words are added ad citationem talis episcopi That writ which Rastall setteth down at large whēcesoeuer he had it seemeth to be the perfect whole copy of the originall therfore of more credit It is also probable that the gatherer of the Register did abridge out of this Writ at large as hee thought good For in the very Writs that went foorth in deed the copies whereof bee in the Register letters for the most part bee put there in stead of the names of the parties whereas here it is ad citationem talis episcopi talem episcopum without name or any letter for it that might direct men to know of what Writ it was a parcell which argueth it was not verbatim copied foorth of the Writ Howsoeuer it be the one of them must expound the other seeing they concerne one and the selfe same matter In treating therefore hereof I mind first to shew that albeit these words did carie the sence y t is inforced yet it may be that the law is otherwise then y t they are not of that acceptiō lastlie how they are otherwise meant what is that true meaning For the first it is no lawe of necessitie being neither Statute nor Common lawe No statute for it is not in the Parliament rols nor in any printed booke of statutes at large nor in sundrie ancient written copies It is no common law for it is sayd to be formata prohibitio super articulis cleri 1 9. Edw. 2. which is a statute of late time in comparison and the precedent of that Prohibition as it is in the Register printed being vnderstood according to the mind of the Authors of this opinion is contrarie to the generall custome of the Realme For by time immemoriall all Ecclesiastical courts without impeachment haue cited both the parties principall for answere and witnesses also vrging them to depose by oath in all the other seuerall causes also that are prooued afore to be of ecclesiasticall iurisdiction and conusance I haue had of long time an olde Register in parchment written as may be euidently gathered and appeareth by the frame of the hand and letter about king Edward the seconds or king Edward the thirds time In it there is no such precedent of prohibition or of Attachment as either the printed Register or Rastals Abridgement of statutes setteth downe But there are many prohibitions vnto ecclesiasticall courts that run in this sort viz. Ne teneatis placitum in curia christianitatis de catallis debitis quae non sunt de testamento vel matrimonio And the first of this sort is thus entituled in the margent Prohibitio regia de catallis debitis quae non sunt de testamento vel matrimonto One thing besides I find there in mine opinion worth the noting for this purpose yet not obserued in the printed Register For such precedents of Originall Writs as exceeded the memorie of any man at what time they were first drawen framed that old booke setteth downe simply without any addition But if they were of later times deuised then this marke title is giuen vnto them in the margent viz. Prohibitio formata or breue c. formatū Now Rastals Abridgement giueth the like title to the writ wherupon this controuersie groweth viz. Prohibitio formata super articulis cleri which argueth that there is no such original writ of old at the common law but that it was thē newly deuised to meete with a new mischiefe Quae de nouo emergūt nouo indigent auxilio The being of it in the Register doth not make it of necessitie to be law for sundry of those writs were framed of late times as may appeare to any that wil peruse thē vpō particular mēs suits as occasiōs fel forth somtimes perhaps drawn vpō priuate suggestiōs of the counsel of one side though afterward allowed Nay in my said old written Register of writs there is a precedēt which as I take it goeth not now for lawe For there is a direct
and the other is forbidden to be done 1 Arg. l. 13. cùm ita ff de rebus dubiis A disiunctiue argueth seueral things that had neede to be expressed by seuerall wordes And by like reason it cannot be meant of witnesses depositions for if the partie conuented shall be content de facto though he be not compellable by lawe as this opinion presupposeth to denie the intention of his aduersarie then no Lay witnesse might in any such other cause ecclesiasticall be vsed either to depose with oathe or without oathe because both be forbidden and so no plea in any such other ecclesiasticall cause coulde be holden which is afore prooued to be otherwise and therefore consequently that is not the meaning of these wordes of the writte which is by 1 Fitzh nou na breu fol. 41. a. Fitzherbert and others that follow him enforced Touching the writ of Attachement thereupon whether as it is set out in the Register it may be holden to haue bin an originall writ at the Common law drawen at first by the grauest aduise in the Realme to be so perfite as that nothing further then is expressed by the words neede therein to be vnderstood to come by the true meaning may partly be gathered by that which followeth First it is said pone talem episcopū not vsing letters for his name as in most of the other writs Next a Bishop who in that he hath a Barony is presumed to haue temporalties whereon to be distreined is here appointed to finde vadios plegios Thirdly it hath laicos homines foeminas as if women were not homines seeing homo is the cōmon gender Fourthly though the prohibition whereupō it is framed forbiddeth both recognitiōs to be made and oathes also to be taken by lay men yet the Attachement wholly omitteth the making of recognitions And yet howe many oathes soeuer should be giuen if none answeres or depositions doe thereupon euer followe which two the opinion that we impugne meaneth by recognition what colour of preiudice doeth or can growe that either Prohibition or Attachement should neede to be awarded Fiftly neither by Ciuill nor Canon lawe neither yet by practice doth any sommons or citation goe out of an ecclesiasticall court in such sort as this Attachement assigneth to be a preiudice vnto the royall dignitie viz. ad comparendum coram eo ad praestandum iuramentum pro voluntate sua ipsis inuitis For it were a grieuance giuen euen at the Canon lawe if an Ordinarie should either call any being not a partie or necessarie witnesse in some matter depending or should call witnesses against their will not being first required and hauing their charges offered or if he should do it when there is no cause but 2 Pro voluntate sua for his owne pleasure as this writ implieth Sixtly the proceeding hereby condemned is saide to be done in praeiudicium graue coronae dignitatis nostrae regiae But if no matters be thereby drawen from the kings courtes as in deede none be though you followe the interpretatiō thereof by some enforced then what preiudice commeth to the crowne For though lay men be vrged to depose vpon their othes in all other causes besides that be of Ecclesiasticall conisance what damage or detriment doth the Crowne and dignitie royall thereby susteine more then it doth by their compulsiue deposing with othe in causes Testamentarie and Matrimoniall which this opinion admitteth and alloweth of For if none other causes Ecclesiasticall then those two could conueniently be proceeded in nor any remedy could be giuen by a court Ecclesiastical for want either of the parties answere or witnesses depositions vpon othe yet could not Temporall Courts as the Lawe standeth giue any more remedy in them And so no preiudice to them or to the Crowne that Courtes Ecclesiasticall do proceed as they do to the determination of such causes Nay rather on the other side it were a preiudice to the Crowne that subiects should offend and no good meanes should be found by Law to punish them or to haue a right yet no way for them to come by it Seuenthly that which is there condemned is said to be 1 Consuetudine praed vsi fuerimus semper libettatibus huiusmodi Prohibition in Rastell tit Prohib nu 6. contra consuetudinem regni nostri which doeth strongly argue that vrging parties in other Ecclesiastical causes to put in their answere vpō their othes or witnesses so to testifie is neither by that fourme of Prohibition forbidden nor by the Attachment thereupon ment to be disallowed For first the custome of diuers Courts Temporal requireth parties answeres vpon othe and likewise alloweth Writs of sub poena and other processe in sundry cases to compel witnesses to come in and to testifie their knowledge And againe in Courts Ecclesiastical the custome hath alwayes bene to require othes of parties and witnesses though otherwise vnwilling in maner as is a fore touched Which may appeare both in that the Lawes Ciuill and also Canon which they deale by doe require it and that no bookes of Actes Ecclesiasticall as I am verely perswaded can be shewed whether of olde or later times by which it may not appeare that this course of compelling parties and witnesses to take othes in other causes then those two hath bene vsed so often as occasion hath required And therefore not this but some other maner of proceeding it was which by the Writte of Attachment is meant to be contra consuetudinem regni Lastly this fourme of Attachment mentioneth not so much as excepting of compelling to take othe in causes Testamentarie and Matrimoniall albeit the prohibition haue that exception And therefore for auoyding of iarre betwixt them something must necessarily be vnderstood to haue bene at first in the Writ it selfe whereof this is a minute further then is here expressed And why shall not then the clause de catallis debitis be vnderstood therein aswell as this other seeing so strong probabilities doe leade it and so many absurdities and inconueniences be thereby auoyded which the late enforced interpretation doth necessarily inferre with it selfe Therefore wee may conclude this second point that to debarre Courtes Ecclesiasticall in any cause of that Iurisdiction from exacting parties conuented to put in their answeres vpon their othes or from compelling such witnesses by censures to testifie who being required and their necessary charges being offered doe neuerthelesse refuse to testifie a trueth is not nor yet can be the meaning of that Prohibition or of the Attachment thereupon The last point of the three to be touched is concerning the true meaning of those wordes of the Writte whence these controuersies haue flowed It is therefore to be remembred that it was very vsuall for men in those dayes at making of any contracts whether in matters of Lay fee or others for their more securitie to make faith or othe for performance This they either did priuately for
confirming of deedes drawen betwixt them or else for more readinesse of dispatch and better testimonie they 1 Register pag. 37. would recognize one to another such contractes with faithful promise called fidei praestatio and sometimes with 2 Register pag. 43. monstrauit nobis Matilda corporall othes voluntarily taken before Ordinaries and therefore procure an Acte to be made by a publicke Notary Then if either paertie failed in performance he was by Processe Ecclesiastical called before the Ordinary as to answere for an Acte done afore him or fidei laesione which failing being confessed or proued the Offendour was enioyned grieuous penance and no doubt oftentimes compelled by censures to keepe his faith or othe by satisfying of the other partie This course being so ready at their owne doores in euery Dioeces and of so speedy execution for the great feare then caried by most sorts of men vnto the censures Ecclesiasticall and for grieuousnes of the penance otherwise grew to be very vsuall in euery place as may partly appeare by the often disputes vpon prohibitions brought hereupon euen after this Writte was framed that are here and there mentioned in the bookes of the Common Law and are afore touched by me in 1 c. 8. huius part the 8. Chapter and partly may be shewed by sundry old euidences and instruments recorded in ancient legers and in Acts of Ecclesiasticall Courts before the time of Edward the second which I haue seene and perused Namely I haue ready to be shewed a solemne contract in writing made almost 400. yeres agone wherein the Earle of Arundel vpon a concord then made for himselfe and his heires promiseth and graunteth to the Archbishop of Canterbury and to his successors certaine red deere and fallow of both seasons yeerely for euer to be at a certaine place deliuered for the Archbishop out of the forest of Arundel For the obseruation whereof he there bindeth himselfe and his heires by a corporall othe taken and further graunteth that if he or they faile herein then the Archbishop shall excommunicate them so failing and keepe them vnder the same censure till the purport of that agreement be perfourmed I haue likewise to be shewed an olde written booke of 2 23. Ed. primi Acts Ecclesiasticall sped in the Audience Court of the Archbishop of Canterbury in the reigne of King Edward the first wherein sundry suites pro laesione fidei of that nature be conteined The thing which gaue colour hereunto was the pretence of auoyding and punishing the sinne of Periurie For the Canon Lawe saith thus Iuramenti causa regulariter quis forum Ecclesiasticum non seculare sortitur c. praedicandum 22. q. D D. in c. cum sit ex de foro competenti If saith a learned writer on 3 Panorm in c. cum sit de foro competenti the Canon Lawe the Action be touching an othe in respect of the Court Poenitentiall or be commenced for release of the bonde of such othe so that it respect not principally the commoditie of some Lay person or if it bee doubted whether the othe be lawfull or not be to be kept or not then the conisance of it doeth belong to a Court Ecclesiasticall And in 4 Panor in c. qualiter el. 2. de accusat another place thus When the partie to bee damaged by violation of the othe is such as cannot vse Action or when enquirie is made for the correction of the Crime then may the Iudge Ecclesiasticall enquire euen against a Lay man not obseruing his othe Insinuating that in all other cases violating of othes by that Lawe belongeth to the conisance of a Temporall Court And the statute also of circumspectè agatis which alloweth punishment by the Court Ecclesiasticall for breach of an othe but distinguisheth not there in what causes or how farre did giue herein some incouragement So that the mischiefe that grew hereupon was this that most Lay contracts of goods and chattels were by this meanes drawen into Ecclesiasticall Courts though in trueth as I thinke contrary to the Common Lawe of the Realme For if the principall matter be of Lay conusance for confirmation whereof such faith is made or othe taken then according to the distinction 1 Cap. huius partis 8. afore prooued out of the Common Law it is not such faith or othe that will change the authoritie of the Court to make it simply of Ecclesiasticall Iurisdiction For so 2 Bracton lib. 5. cap. 9. Bracton writing in the time of Henry the 3. testifieth and withall giueth good light and euidence to the interpretation hereafter following of those words of this Writ Iurisdictionem regiam non mutat fidei interpositio sacramentum praestitum nec spontanea partium renuntiatio quamuis sibijpsis in hac parte praeiudicent per consensum illud idem dicendum erit de debitis catallis quae non sunt de Testamento vel Matrimonio vel eorum sequela It was 3 Grauam 64. one of the hundred Grieuances which the Germaine nation complained of that Ciuill causes and contracts by pretence of faith or othe giuen were drawen into Ecclesiasticall conisance Therefore to meete with this mischiefe and to cut off the occasion this Writte of Prohibition seemeth to haue bene framed viz. to forbid Lay men in any place either before Ordinaries or in priuate amongs themselues to make any recognitions or acknowledgings whereof of debts or of cōtracts touching goods and chattels by their faiths or othes taken in any cause whatsoeuer besides Testamentary or Matrimoniall For in these two causes neither then nor at any time since as in part is afore shewed was it vnlawfull for Lay men to make acknowledgement and depose in a Court Ecclesiasticall vpon othe though it touched goods and chattels In matters Testamentary as in Probats and in legacies of goods and chattels in demaund in matter of inuentaries and of accounts of the deads goods and chattels In matters matrimoniall as in money promised with a woman in mariage as is more fully shewed in the 3. Chapter And so this writ is not simply prohibitorie of all Recognitions and Oathes by lay men in Ecclesiasticall Courtes excepting those two causes but onely forbiddeth Recognitions and oathes in other causes made or taken that doe touch debtes goods and chattels or other such lay contracts and all citing of parties to take them or which haue taken them and all citing or compelling of witnesses to depose touching such contracts about goods and chattels though confirmed by faith or othe of the contractours Nay there is strong euidence to be brought that not many scores of yeeres before the 9. of Edward the 2. when as Articuli Cleri were enacted whereupon that Prohibition is said to be framed the Clergie both vsed and thought they shoulde haue wrong to be barred from hearing all breaches of faith and periuiurie arising of or touching what cause soeuer so they dealt not with the
to make such a briefe abridgement of so long a writ For it doeth not appeare that before the imprinting it was perused allowed by any the Iudges then being or by any others deputed by publike authoritie for the reuiewing and correcting of it No doubt if it had bin that I speake of nothing else so many grosse errors in the Latin both against cōgruity al sense as in every leafe almost of the copie which the Printer followed are to be found could not haue so escaped without cōtrolement and amendment But the former wordes set downe by Rastall at large in the writ in selfe where neither of these last recited clauses are to be found are too cleare in this point to be dimmed by any such light colours But if hereupon it be perhaps graūted as the authour of the Treatise doth that witnesses may take oath depose willingly in other ecclesiasticall causes at the request of some of the parties I must then call to their minde that I haue shewed afore that following their owne interpretation they may not though they be willing Yea though witnesses might if they were willing how can a reasonable man entend that the partie to be sued will come in at all but much lesse answere if he may not be cōpelled vnto neither viz. neque ad recognitionem faciendā neque praestandū sacramentū as Fitzherbert in his natura breuiū also doeth vnderstand and reade it And the wordes reach vnto all lay persons not distinguishing a partie from a witnesse Againe by that their interpretation of recognition oath they could neuer haue such witnesses that be indifferent as in part is afore touched For if witnesses may not be vrged to sweare or to answere further then they list themselues then will they onely answere to the matters propounded by him who produceth them and wil refuse to answere the Interrogatories propunded by the other partie for his defence by whom they were not requested to come Which course vpon the matter taking away all testimonie that ought to be indifferent for either partie in such pertinent matters as are to be demaunded is contrary to the lawe of God of nature of nations and to the very qualitie of a witnesse Decius saith 1 Decius in l. 2. C. de edendonu 43. Si testis deposuit pro vna parte interrogatus pro alia noluerit respōdere illi fides adhiberi non debet quia praesumitur supprimere veritatem And so the course being most vnreasonable that whereupon it followeth must needes be also very absurde and against Iustice. By all which premised discourse it is made I hope manifest whether Fitzherbert had good ground out of that fourme of Prohibition and Attachement to 2 Nou. nat breu fol. 41. litera a. gather not onely that Ordinaries must expresse a particular cause in all their Citations but also that if they expresse any cause at all in the Citation that it seemeth by that writte it must bee a cause matrimoniall or testamentarie For seeing they haue none other meanes besides Citations to summon men to their Courtes What is this latter collection built but vpon a doubtfull seeming else then an asseueration implied that none other of the causes afore proued to be of ecclesiasticall conisance shall euer be dealt in by any court ecclesiasticall and so vpon the matter in no court at all for that temporall courts be out of iurisdiction in those matters Which howe it may be defended from grosse absurditie I would gladly learne from any that patroniseth this opinion But if the lawe were so in deede that none should be called into ecclesiasticall courts but for those two causes I marueile what the Preshyteries so much doted after especially by sundry fauourers of this interpretation would doe here in this Realme when their Cōsistorial power should be so lopped that they could not call any man before them but either in testamentarie causes which they make in other mens dealings to be meere Ciuil causes or matrimoniall many of which also they now seeme willing to abandō as temporall matters for they should be driuen either to be kings of molehils or else to preache in the most vehement veine they haue against that lawe and those magistrates which in such sort would restraine them as if they were both Antichristian at least for hindering and so impounding of the pretended gouernement of Christ that thereby they might at length be set at libertie to deale in their Consistories against all crimes whatsoeuer according to their owne platfourmes Yet herein they should deale very vnequally because they will not nowe suffer that vnder this gouernment which themselues would practice against crimes in a farre more ample and peremptory maner then either nowe is done or were meete to be suffered In the bookes of the Common lawe I finde also some cases that giue strength to this interpretation For an 1 M. 44. E. 3. fol. 32. Attachement vpon a Prohibition was sued because they sued in a spirituall Court for haye and money which touched neither matrimonie nor testament and after vpon shewing the Libell which prooued that it was for tithes and oblations a consultation was graunted Likewise 2 M. 38. H. 6. fol. 14. a Prohibition was sued foorth of the Chauncery directed to the Iustices of the common Pleas to make an Attachement because the defendant had sued the plaintiffe in the spiritual court for debt which did not touch matter of matrimonie nor testament whereof the conisance belongs to the Kings Court and thereupon a prohibition was granted thence Wherein it is woorth the noting that Fitzherbert in his 1 Fitzh Prohibition nu 5. Abridgement leaueth out these words for debt contrary to the booke it selfe at large and also 2 Brooke Prohibition nu 6. to Brooke I will not say it was to giue colour to his opinion in his Natura breuium as if he ment to haue it sound that no matter at all but either matrimoniall or testamentarie might be sued in court spirituall whereas by these two reports it may appeare that Prohibitions did not lie in this respect for that the parties were sued and called into the ecclesiastical court against their wils in any other cause whatsoeuer then those two but onely for suing there for chattels debt which did touch neither matrimony nor testament Whereof may bee gathered that euer since the first framing of this writ either none in this point hath knowen the lawe vntill Fitzherbert for nō est instandum inproposito or else those words doe carie another meaning then is now fathered vpon thē which that they doeboth in the affirmatiue for ours negatiue against theirs I hope is somewhat plainely prooued And therefore we may conclude that these two last opinions the one for not citing any person in any other cause then these two the other for not citing laie men for not vrging them to take oath in any other cause
ecclesiasticall no man may be imprisoned Therefore the vntying of this knot resteth vpon the whole matter here disputed of viz. whether that statute 10. Eliz. doe not warrant her Maiestie to graunt by her Highnes letters patents power to imprison for such contempt as this obiection importeth To prooue that her Maiestie may not so graunt nor they take such authoritie the Note-gatherer affirmeth that the commission bindeth them precisely to crimes punishable by the ecclesiasticall lawe and to proceede according to the ecclesiasticall lawes of this Realme and not according to the temporall quoting fiue statutes for this albeit there be in none of them any such matter but both the first and second part of this obiection is vntrue For the commission though nowe that power be not altogether vsed graunteth the execution of foure statutes vnto them and alloweth them to proceede aswell by Iuries as by course of the lawe ecclesiasticall And when Doctor Grindall was Bishop of London sundry crimes ecclesiasticall by vertue of the commission were tried by Iuries before him and certaine Iudges and other professours also of the common lawe being then in that commission Yet is the Note-gatherer vpon this vntrue ground bold to inferre that to doe otherwise is to encroche vpon the temporall iurisdiction and to make an hotchepot in one commission Truely this his collection is not worth an hotchepot that is a pudding as Littleton doeth expound that worde For the temporall Iudges are not to proceede in matters of ecclesiasticall iurisdiction and therefore their iurisdiction is not encroched vpon though in such matters ecclesiasticall attachements or imprisonments be vsed or fines imposed seeing they themselues cannot in those causes vse or impose them When the whole Realme at the beginning of her Maiesties reigne was visited by vertue of this statute by Diuines Ciuiliās and Common Lawiers in that seruice imploied who had authority by their seuerall cōmissions to attache imprison fine c. aswell as to vse censures ecclesiasticall al which they did accordingly then and at that time none of these quicke narrow sighted fellowes lately sprung vp were to be found that could see more then the reuerend Iudges and could so roundly tel her Maiestie that she did graunt more authoritie to her Commissioners then by that statute was giuen to her selfe Oh belike it was lawe then and good iustice against Papistes but to deale against pretended Reformatists it commeth farre too short But the Treatisour vrgeth this matter yet further he saith that no learned man wil affirme any Iurisdiction by that acte 10. Eliz. to be vnited to the crowne but spirituall or ecclesiasticall And that none such can affirme that any iurisdictiō c. repugnant or offensiue to the Common or Ciuill Policie of this Kingdome is established by that Acte for that there is none Antinomy or contrarietie of lawes Whereupon he woulde inferre that Attaching Imprisonning and Fining c. by vertue thereof is not warranted to be graunted In answere whereof let him vnderstand that his argument followeth not vpon either of those Antecedents For the first though the matters of iurisdiction thereby vnited to the crowne be onely ecclesiasticall yet the maner of conuenting or punishing in them is not in that Acte so restrained but that such other courses may be vsed as to her Maiesties wisedome shall seeme most fitte which by and by shall be shewed God willing For the second we deny the maner of conuenting and punishing established by the commission to be repugnant or offensiue any way to the Ciuill Policie of this kingdome for it is warranted by that Acte This point if the wordes of that whole clause be aduisedly weyed and considered will be made most plaine In the exercise of a criminall iurisdiction there is the matter wherein it is bestowed the maner of conuenting and sanction or penaltie to be inflicted vpon offenders which are to be considered Now the matter of this iurisdiction and authoritie graunted to her Highnes and that may be assigned ouer by her Maiestie vnto Commissioners is visiting reforming redressing ordering correcting and amending all such errours heresies schismes abuses offences contemptes and enormities whatsoeuer which by any spirituall c. Yet what course is to be holden in calling and conuenting and what kind of penalties or censures shal be inflicted vpon offenders by that authoritie are by no wordes of that acte expresly graunted to her Highnes or mentioned that they may be assigned by her vnto the Commissioners and therefore of necessitie to be supplied by those generall wordes viz. According to the tenour and effect of the letters patentes For els by such an interpretation of theirs we should haue matters for a Iurisdiction but neither any maner to conuent and compell to come afore the Commissioners nor yet punishment to lay vpon enormious offendours against whom it was intended Which because it is very vnreasonable therefore that opinion whereupon it necessarily followeth must needes be more absurd and without ground of reason Yea say other of them be this as it may and let them seeke out what processes c. may and shall be vsed by the Commission Ecclesiasticall for it is contrary to the lawe to graunt by Commission authoritie to inflict any punishment vpon a faul◅ which by lawe ought not to be inflicted and therefore they gather that the Queene cannot authorise nor any man may take power to attache to fine or to imprison men by that Commission Thus farre it is true that a Cōmission may not be graunted to alter or change any lawe in force but I trust it is not contrary to the Common lawe and custome of the Realme by acte of Parliament to alter and change that which stoode otherwise afore at the Common lawe If this so did by the course of the Common lawe no man may be put to the racke or torture especially about felonies or murders thereby to drawe him to confesse of himselfe or of other men his complices Yet is it notorious that in Wales and the Marches thereof the President and Counsaile there established doe vse and lawfully may put men to such torture by warrant of instructions onely sent vnto them from time to time vnder her Maiesties gratious hand This their authoritie I take it is deriued from these 1 38. H. 8. ca. 28. Rastall Wales 32. wordes in an Acte of Parliament The President and Counsaile there shall haue power and authoritie to heare and determine by their wisdomes and discretions such causes and matters as be or hereafter shall bee assigned to them by the Kings Maiestie as heretofore hath bene accustomed and vsed Which doe conteine no more particularitie of authoritie nor yet are of so much pregnancie to that purpose as the wordes that establish the Commission Ecclesiasticall be for Attachment fine and imprisonment to be vsed if it shall please her Maiestie so to commit them The deuise of the Commission Ecclesiasticall was for assistance and ayde of Ordinary Iurisdiction
graunt and great seale set to it yet bearing date truely were expelled by colour of letters Patents bearing the elder date In the body of the Acte is conteined this particle Such which is of restraint viz. That the King willing to put out such slye deuises or imaginations did ordeine by Parliament that letters Patents should be dated the day of their deliuery into the Chauncery or else be voyde Now if this Statute were to be vnderstood of all letters Patents whatsoeuer where is the reason of that Lawe found in a Commission but ratio est animalegis cessante ratione cessat Lex Therefore this Statute can be stretched to none other letters Patents but Such as the mischiefe mentioned in the Preamble may happen into Yea if it were otherwise to be vnderstoode he must ere any will beleeue him bring more euident matter then this viz It is thought and It may bee thought Let him then goe seeke the Records in the Chauncery and see whether the date and the day of the deliuery of it doe not agree and so may hee haue more colour to wrest the statute when he doth not misreport the matter in facte as herein hee hath done CHAP. XV. That an Ecclesiasticall person may be depriued of his benefice without enditement or prosecution of partie IN the next opinion I minde to be very short it is this that by none ecclesiasticall authoritie a man may be depriued of his benefice which is his freeholde being not endited and no suite of partie offered against him Whereby we see he requireth both an enditement and a suite of some partie It seemeth his meaning is that a Minister cannot be depriued but by way of enditement at the Common law and that the Iudge of Office may not preferre such enditement but it must needs be at the sute of a partie I can not well coniecture whereupon he pretendeth to ground this opinion If vpon the 29 chapter of Magna Charta it is shewed in the chapter next precedent not to be vnderstood of Ecclesiasticall iurisdiction or of the practice thereof And moreouer that chapter in Magna Charta requireth no suite of partie to preferre the enditement so that it may be done by the Iudges of Office well enough But this conceit is very strange that Bishops shall not haue authoritie to depriue an Ecclesiasticall person from his benefice It is shewed in the chapter afore that by vsuall and allowed course of pleading to a Quare impedit the Ordinarie doeth claime as of common right institutionem destitutionem Clericorum in benefices within his iurisdiction And the olde rule was Cuius estinstituere eius est destituere But perhaps it will be said he meant that a Bishop might doe it but not of Office that is without a partie albeit he put a Copulatiue in stead of a Disiunctiue But if his meaning be such he meaneth more then is true And further what priuilege or benefite is this to the partie conuented to be prosecuted by a partie and therefore perhaps of malice and by subornation of proofs rather then by the ordinarie proceeding of office and duetie for whose sinceritie we may more probably presume and intend Moreouer what if one that hath a benefice will come vnto the Bishop and there stoutly defend Atheisme Apostasie or denying of Christ or any other heresie grosse blasphemy or idolatry may he not till some accuser be found or a partie to prosecute depriue such a person from his benefice ex Officio What if the beneficed person will confesse before the Ordinarie that he was neuer called to the Ministerie but hath vsurped it by colour of forged testimonials of Orders or that he hath committed Simonie Incest Adulterie or hath two wiues liuing at once or 1 13. Eliz. ca. 12. that he neuer subscribed nor read the Articles of religion or being once conuicted do againe defend some errour against such Articles may not the Bishop ex officio in all or in any of these cases depriue or declare his benefice void except some other will come and make himselfe a partie But that he may do it appeareth 2 1. Eliz. cap. 2. by the statute 1. of her Maiestie for there it is said he may enquire which is alwayes ex officio as shall be more plainly shewed in the second part and may punish by Depriuation c. as in like cases hath bene vsed by the Queenes ecclesiasticall lawes CHAP. XVI That after fortie dayes an excommunicate person may be otherwise punished then vpon the writ De excommunicato capiendo And that the said writ may and ought to be awarded vpon contempts rising on other originall causes ecclesiasticall then any of those ten crimes mentioned in the statute 5. Eliz. cap. 23. THe last opinions to be handled in this part be these viz. that an excommunicate person standing so aboue fortie dayes may in none other sort be punished then vpon the writ De excommunicato capiendo The other is that the said writ De excommunicato capiendo ought not at all to be awarded vpon contempts rising from any other originall causes then vpon some of the tenne crimes that be mentioned in the statute 5. Eliz. cap. 23. The first is easily impugned for he may be punished twentie pounds by moneth for absence from diuine prayer neither shall his excommunication excuse him for it is in his owne default Besides it is a great contempt in an ecclesiasticall cause and therefore punishable by the Ecclesiasticall commission vpon the expresse wordes vsed in that Act which doeth establish that Commission And this standeth with reason where there are great numbers of such wilfull persons or slacke execution by Vnder-shirifs and Bailifs of that writ as often falleth out besides the great charges in suing of it out For I dare auow that in sundrie dioecesses in the Realme the whole yeerely reuenues of the Bishops there would not reach to the iusticing of all such contemners being of the baser sort of persons by the course of this writ They might happely to the great charge of the shire keepe many of them in prison long enough yet they should neuer procure the fees backe againe that first whether for rich or poore must be defrayed for want of ability in the persons so excommunicated Lastly the law ecclesiasticall very reasonably grauely prouideth in this behalfe that if a 1 c. excommunicamus §. qui autem ex de haeretic man stand excommunicate aboue an whole yere he may be proceeded with for suspicion of heresy because the law presumeth that such a mā hath smal feeling of religion but rather contemneth it and nourisheth some damnable opinion against God and his Church And therefore such an excommunicate person may be punished by reason thereof otherwise then by that writ All the colour of reason that I find alleged against this course by the Treatiser is thus that on our behalfe it will be said this is a shorter way then the other
in it selfe and therfore it is a contempt to sue against it In a prohibition we are to consider In what matter it lieth not at what time it lieth not where and when it lieth how it ceaseth or looseth his force For the first it is 2 18. Edw. 3. pro clero ca. 5. prouided by statute and the king there determineth thus that no prohibition shall goe out of the Chancerie but in such case where we haue the Conisance of right ought to haue And therefore Thirning 3 M. 2. H. 4. fol. 15. said when we see the iurisdiction belongeth not to vs wee will graunt a Consultation So that if the matter be meere Ecclesiasticall there lieth no Prohibition Touching the second point it seemeth a Prohibition is not to be granted till by sight of the Libel there appeare cause to grant it For 4 31. H. 6. fol. 14. Henkstone held that by the statute de Regia prohibitione de coniunctim fe offatis in fine a man shall not haue prohibition antequam lis sit contestata in curia spirituali which is till a libell be put in and the partie put to answere it this is to be certified to the Chancellor by the view of the Libell which Fortescue granted But this hath two exceptions one is when the copie of the Libell contrary to the Statute 2. H. 5. is denied for vpon this cause I finde a 1 M. 4. E. 4. fol. 37 prohibition granted that the Ordinarie should surcease till the copie of the Libell according to that statute were deliuered another exceptiō is in some court where a surmise is made that the suite in trueth is for some other matters then are expressed in the Libell for Brooke reporteth that 2 Brooke tit prohib nu 17. a man may haue a prohibition in the kings Bench vpon such a surmise as for example by surmising the suite to be in deede for great timber though it bee demanded in the Libel vnder the name of Sylua caedua but he saith it is otherwise in the Common Pleas. Touching the third point for what causes a Prohibition is granted I find it may be granted either in respect of some of the parties to the sute or in regard of the Iudge before whom it is or for the very matter handled For the first of these three If a 3 T. 12. H. 7. fol. 22. Parson of a Church do sue another Parsons farmour or seruant for right of tithes being not such as can trie the right of tithes Fineux held that a prohibition may be granted Here of see further in the 6. chap. afore Touching the second it may be granted either for the Iudges contempt as in not deliuering copie of the Libell as is afore touched or for that he hath not in deed any iurisdiction for so it was iudged by Hankeford and by the whole Court as it seemeth in the vicar of Saltash his 4 M. 2. H. 4. fol. 15. case being cōuented before the Popes Collector Though a Consultation did otherwise lie the court wil not grant it to one that hath no iurisdiction in right Concerning the third and last poynt of the three if the matter bee Temporall that is such as 5 Stat. de consultat 24. Ed. 1. there lieth redresse for by some Writte in the Chancerie then there lieth a Prohibition as seemeth by Statute to which agreeth the 6 Lib. 2. ca. 24. place before alleaged out of the booke of Doctor Student Yet this hath also two exceptions one is whereas the Spirituall Court holdeth Plea quite to another end For 7 Artic. Cleri 9. Ed. 2. cap. 6. when one the selfe same case is debated before Iudges spiritual and temporal as for beating of a Clerke there the statute is that notwithstanding the spirituall iudgement the kings Court also shall debate it For both these conisances tending the one to the amends the other to the excommunication may stand together as is shewed in the 8. chapter The second exception hereof seemeth to be 1 T. 9. H. 3. per Fitzh Prohib when one Clerke sueth another in the spirituall Court for the goods of his house for there lies no prohibition as when one Abbot sueth another Secondly a prohibitiō lieth where a matter being at first ecclesiasticall brings at last in debate a meere temporall matter with it to be determined Therefore it was holden that so soone 2 38. H. 6. fol. 21 as it appeareth that the right of tithes comes in debate the laie Court shall cease and be out of iurisdiction and the same law is of the spirituall Court for if it may appeare that the right of aduowson may come in debate although it appeared not at first the spirituall Court must surcease quod fuit concessum This may happen as for example when suite is brought at first for right of tithes and it fals out by depositions or otherwise that the tithes 3 Circumspectè agatis 13. Ed. 1. demanded amount to the 4. part of the benefice by yeere in which case it is determined that the temporall Court shall haue conusance euen as if the right of Patronage were in demand principally Thirdlie a prohibition lieth for such a cause 4 Doctor Student Loco d. as albeit there lie none action for it in a temporall Court yet the matter is such as of custome neuer belonged to an ecclesiastical court As if an ecclesiasticall court would hold Plea against an executor vpon a bare contract made by his testator for neither the court may heare it nor yet there lieth action for it in a Temporall court Fourthlie there lieth Prohibition when the suite tendeth to determine and giue execution in a temporall matter as money c. being due otherwise then by the iudgement giuen in the Court ecclesiasticall Therefore if a composition by indenture 5 11. H. 4. fol. 85. be made by an Ordinarie betwixt two ecclesiasticall persons that the one shall haue tithes the other an annuitie with penaltie for default of paiment the suite for this shall bee at the Common lawe but the suite for any thing that riseth vpon a iudgement giuen in the spirituall Court shal be there per Hill For 6 T. 12. H. 7. fol. 22. though amends bee to bee made by a certaine summe of money this is no necessarie cause to grant a prohibition no more then when the suite is for tithes yet the condemnation in money being the valew of them nor when a penance is redeemed by the partie for money which may be sued for in a spirituall court per Butler Because when an offence is done to a man it is 1 Ibidem reason that he haue amends for it but there can be no more proper amends then money because euery thing may be valued by money per Keble Which they speake to prooue that amends in money may be awarded in an ecclesiasticall Court for Diffamation
likewise that none shall bring them into the Realme or being perhaps brought in by another shall receiue them or being neither brought in by them nor yet receiued froÌ„ others but comming some way to their knowledge shall not make any notification or any other execution of them where neither within the realme nor without c. vpon paines there at large conteined Of those generall heads whereunto I said afore that all questions of Praemunire might be referred there be some that being expressed in these statutes are I thinke without all doubt to be within the compasse thereof as by the first of these two to draw any of the Queenes liegeance out of the realme in a plea whereof the conisance pertaineth or iudgements be giuen in the kings Court And that which is sayd of a Plea in the kings court is also drawen by some opinion vnto a court Ecclesiasticall for 1 9. Ed. 4. fol. 3. Yeluerton in the Kings bench held opinion oftentimes that if a Clerke doe sue another in the Court of Rome for a spiritnall matter whereof he may haue remedie within the realme that he is in case of Praemunire quia trahit in placitum extra regnum And 2 Fitzh Noua nat br fol. 44. lit H. Fitzh holdeth that for collation of a Prebend sued out of the realme a prohibition doeth lie Secondlie it is an vndoubted Praemunire by that statute to sue in another court to defeate or impeach the iudgements giuen in the kings court In these wordes of another court there seemeth to be an opposition and seuerance of such a court from the Kings court the rather because both the Preamble and the body of the statute do mention drawing men out of the realme in Plea Whereof at that time there was no colour for any man to be drawen any whither but onely to the court of the bishop of Rome whether he resided there at Auignon in France where the Popes about that time did lie 70. yeeres together at Bononie or elsewheresoeuer Therefore for the true vnderstanding of those words enquire If any of this realme of late yeeres whiles the parliament of Paris was established by the authoritie of the French king vpoÌ„ colour that the Queenes maiâ—…stie is in very right Queene of France should haue brought processe thence against another subiect to appeare there whether this had not been a Praemunire by that statute likewise If any of the Q. Courts not authorised therunto by law vpon writ of errour should defeate a iudgement giuen in any other of the Queenes courts enquire whether this be within the meaning of those words notwithstanding the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and distinction whereby such another court seemeth to be seuered and made a distinct thing from all the Queenes court Thirdly it is an vndoubted Praemunire according to the later of the foresaid two statutes to purchase or pursue or to procure so to be done in the court of Rome or else-where any such translations c. or any other things which touch the King be against him his Crowne and Regaltie or his Realme as is there aforesaid or c. as is there further conteined Fitzherbert reporteth 1 Fitzh tit Praemunire nu 5. that the opinion of the court was Paschae II. H. 7. that Alibi in the said statute was vnderstood of Bishops courts so that if a man sue there for a thing that belongeth to the Common law he shall be in the Praemunire Therefore 2 Brooke titulo Praemu nu 21. was it holden by some that a benefice Donatiue by the Patron is a meere lay thing and the Bishop shall not visit it and therefore shall not depriue from it and if he meddle in this case it is a Praemunire and sayth that Barlow bishop of Bathe for depriuing the Deane that had it as a Donatiue by the Kings Letters patents was driuen to sue a pardon Fineux chiefe 3 15. H. 7. fol. 9. Iustice saith a spirituall man may execute temporall iurisdiction as the Bishop of Durham doth in his countie Palantine viz. as he hath iura regalia but not as a Bishop and saith he the Bishop shall punish his Clerks by Praemunire for suing in Spirituall courts for a cause temporall But whether that Bishop hath this authoritie seeing Praemunire is brought in by statute there is a Quaere inde made as of a matter doubtfull It is holden that a Prohibition doth 4 24. H. 8. titulo Praemu num 16. often lie where a Praemunire doth not as of tithes of great trees c. for the nature of the action doth belong to the Spirituall court albeit not that very cause in that forme but when it is of a lay matter or of a thing that neuer did belong vnto the Court spirituall herein as is said there lieth a Praemunire But these notwithstanding sundry doubts are made in this behalfe because at this day all iurisdiction Ecclesiasticall is now truely acknowledged and is in deed as it was alwayes in law in the Souereigne prince and from her prerogatiue royall deriued downe to others no lesse then the Admirall court is or the court of the Constable of England in times past was when it was vsed albeit they vsed their peculiar seales and names to the processes there sped And I haue heard very credibly that some reuerend and great learned Iudges whiles they liued were of opinion that for an Ecclesiasticall Iudge to deale in a matter apperteining in very truth to a Temporall court yet for some neerenesse and cohereÌ„ce by him probably supposed to be an ecclesiasticall cause could not at this day be a Praemunire but subiect onely to a Prohibition and punishable as a contempt as it was at the Common law vpon an attachment after Prohibition Which opinion if it be sound then the Treatiser is farre wide from the truth where he saith that for men to deale in any cause not belonging to their iurisdiction is Praemunire This were very hard and rigorous if euerie mistaking or going beyond their commission by Iustices of Peace by any Iudges ecclesiasticall or temporall should be no lesse then Praemunire I haue heard it deliuered by great Lawyers that so to do doth but make the Actvoid as being coram non Iudice and inferreth no such grieuous penaltie For it is alleged that Alibi in the statute was put in to enclude processes deriued from the Popes authoritie albeit he kept his abode any where els then at Rome In which respect it is affirmed in a 1 25. H. 8. ca. 21. statute that the said statute of Prouision and Praemunire 16. R. 2. was made against such as sue to the Court of Rome against the kings crowne and dignitie royall And it seemeth to some that Alibi can not now signifie Bishops and their Courts which are called the Queenes Ecclesiasticall courts and Iudges and the Canons by law established the Queenes Ecclesiasticall lawes Insomuch as the power giuen by statute to her
Maiestie by her Letters Patents to 2 1. El. cap. 1. name such as shall execute all maner of iurisdictions touching or concerning any Spirituall or Ecclesiasticall power is brought 3 8. El. cap. 1. in the Preamble to prooue the sufficient ordinarie authoritie that Bishops haue giuen vnto them by the very Letters Patents directed from her Highnesse for their confirming and consecrating c. It is further alleged that such dealing of an Ordinary toucheth not the King against him his Crowne and Regalie or Realme as not falling into any of the mischiefs whereof that statute was meant to be a remedie And for that all iurisdiction Ecclesiasticall is now both in fact and Law vnited to the Crowne and from thence deriued if it should be sayd that the handling of a matter but in an incompetent court yet established by the Queenes authoritie were in that high degree of offence punishment against her Crowne some thinke it reacheth thus farre as to implie an incompatibilitie betwixt the Crowne and Ecclesiasticall iurisdiction and so by implication to denie her iust Royall prerogatiue ouer all persons and in all causes aswell Ecclesiasticall as Temporall as if these could not both flow from the Crowne nor stand together and meet in one person which is most erroneous to thinke and traiterous to affirme It is likewise alleged that this were to make in effect a Praemunire to lie in euery case where a Prohibition may and alwayes hath serued the turne Whereas a Praemunire seemeth to be as a remedie prouided where a Prohibition could not serue to stay the course of proceeding And that euen before the supremacy was acknowledged to the Crowne no Praemunire vpon this point onely is reported in the bookes of termes and yeeres to haue bene inflicted but onely for pursuing pleas of the conusance of the kings court out of the Realme seeking to defeat iudgements there giuen and procuring Bulles from the court of Rome in derogation of the lawes of the Realme Moreouer it is to this purpose alleged that by the 1 3. 4. Edw. 6. cap. 11. statute authorising two and thirtie persons to set downe lawes Ecclesiasticall though repealed it was prouided as they thinke in affirmance of the law that no man for executing any of them should haue incurred contempt paine forfeiture losse nor haue bene in danger of any action or suite of praemunire Yet if such lawes had bene framed the Iudges ecclesiasticall might by mistaking haue giuen some cause of prohibition Therefore it is gathered by like equitie to be very hard that an Ecclesiasticall Iudge meaning to do his dutie and but to execute Ecclesiasticall iurisdiction ecclesiastically yet by similitude and neere coherence of one matter with another mistaking and so exceeding his authoritie a thing very easie in the Common law wherein sometimes do happen varietie of iudgements amongst the oldest professers of it if before any prohibition brought as it were to forwarne him he should hereupon de drawen at the very first push into a praemunire For by like reason if a court Baron should heare plea of a matter aboue fortie shillings a praemunire in stead of a prohibition might be brought against them Therefore enquire and seeke to enforme your selfe aswell in the premisses as of these questions following what is to be holden for law viz. in holding plea in an Ecclesiasticall court 1. Doubt of a temporall matter whether there be not a difference when it is propounded vnder the very name of a temporall action and when it is propounded vnder the name of an ecclesiast matter And whether the Iudge be in danger before the matter be 2. Doubt opened vnto him or no For I thinke in no Court temporall or ecclesiasticall the Iudges peruse the writs declarations c. when they are first put in And whether it be as great an offence in law but to hold plea 3. Doubt as to giue iudgement and to award execution in an Ecclesiasticall court of a temporall matter Also whether it be like degree of offence for an ecclesiasticall 4. Doubt Iudge to execute a temporall matter by censures ecclesiasticall as it is to execute it or a matter ecclesiasticall by temporall viz. fine imprisonment losse of limme or such like Likewise of what qualitie the offence is to go on in plea in a 5. Doubt Court ecclesiasticall after a meere temporall matter as right of aduowson c. falleth in controuersie principally to be determined Or to holde plea there in a matter worthie of redresse yet neuer of custome handled either in temporall or ecclesiasticall 6. Doubt Court nor whereof any remedie lieth at the Common law Also what offence it is to make lawes temporall or ecclesiasticall without the Princes assent 7. Doubt What it is to deale in temporall causes or courts without 8. Doubt commission and what in ecclesiasticall And lastly of what degree and qualitie of offence is it for a 9. Doubt Court temporall to holde plea of a meere ecclesiasticall cause or to deale in censures ecclesiasticall Or for such a court to holde plea of a temporall matter being 10. Doubt no competent Iudges thereof as for example if the Court of Common pleas or the Eschequer should deale in pleas of the Crowne that be capitall with such like a great number And so thus much for the first part The end of the first part THE SECOND PART OF AN APOLOGIE FOR SVNDRIE PROceedings by Iurisdiction Ecclesiasticall of late times by some chalenged and also diuerslie by them impugned This second part especiallie treateth of the two seuerall wayes of proceeding in causes Criminall viz. by way of Accusation and ex Officio Iudicis Imprinted at London by the Deputies of CHRISTOPHER BARKER Printer to the Queenes most excellent Maiestie ¶ THE PREFACE wherein is declared howe the foure opinions put ouer vnto this place doe fall in with the challenges of the Innouatours and a generall distribution made of matters to be handled in the second and thirde Parts THe second part of this treatise containeth our proofes together with answere to the obiections made against the maner of practise of iurisdiction Ecclesiasticall by those who do euen professe themselues to endeuour an innouation in the frame of gouernment of this Church of England But wee meane not in this place to handle all which they obiect in this behalfe but only some such of them as touch the maner and fourme of the proceedings in the exercise thereof For it is knowen they take sundry other exceptions as against the maner of calling to function Ecclesiasticall against the ordination against sundry the callings and the functions themselues against deriuing of the iurisdiction Ecclesiastical from the Prince against the matters handled by that iurisdiction and against the maner of handling them in sundry other respects condemning them as Antichristian and contrary to Gods word All which are of another consideration and not fit here to
found by some with the ceremonie vsed in giuing the othe and because the othe is giuen in a cause criminal and penal to themselues In the ceremonie at taking an oth there is reprehended by some the laying of the hand on a booke and the swearing by the booke or by the contents of it Of meaner circumstances falling out in proceeding that they challenge some are concurring with the very tender of the oath as that they haue not distinct knowledge of euery particular whereupon they are to be examined before they resolue whether to take the othe or not and other are ensuing the othe and examination as that the Iudges doe not rest in that which is affirmed or denied vpon their oth but oftentimes proceede to a further examination by witnesses vpon the same pointes All which I mind God willing to prosecute in the same order that I haue here set foorth hauing first touched some matters that I holde not vnnecessary to be knowen by the vnlearned sort for the better opening and vnderstanding of the disputations following THE CONTENTS OF the Chapters of the Second part of this Apologie OF the distinction of offences and seuerall kindes and endes in punishing chapter 1 them with the necessity of punishments Of two sorts of prosecution of crimes and offences viz. by a party of office chapter 2 the practice of them in Scripture and in the seuerall Courtes of this Realme Of the sundry kindes of obiecting crimes by a party mentioned in the Ciuill law as by reason of a mans publike charge and function also by way of chapter 3 Exception Supplication Complaint Delation and Accusation The true signification of the word Accusatio his diuers acceptions definition exposition thereof with some reason of the frequencie of accusation in courts of the Ciuill lawes in former times is also declared That the prosecution of crimes by way of Accusation is in most places forbidden chapter 4 or growen into disuse the reasons hereof be partly the danger to the Accusers and partly the hatefulnesse of that course Therein also is disputed whether all Accusation be vnlawfull and certeine points deliuered to be obserued by all them that will accuse others Of the seuerall acceptions of this word Officium the signification of Inquisitio chapter 5 Quaestio Crimina ordinaria extraordinaria the reason why Inquiry by office came in place of Accusation of Enquiry generall and speciall of Enquiry speciall ex officio nobili siue mero mixto promoto and of the priuileges of proceeding ex mero officio aboue the other Of Denunciation a speciall meanes of stirring vp the Office of the manifolde chapter 6 vse thereof in the olde Common weale and Empire of Rome and at this present on the other side the Sea the general acception of that word and of foure kindes of Denunciation how they differ one from another what is required in them and when a Denouncer is to be condemned or excused of expenses And what course of dealing against crimes and offences is holden both in courts of the Ecclesiasticall Commission and in Ordinary courts Ecclesiasticall in this Realme That the Ciuill and Canon lawes allow sundry meanes to ground a Speciall Enquiry chapter 7 of office against a crime besides Accusation and Presentment therein is also conteined an answere to a supposed rule and declared how from Generall they descend to Speciall enquiry and that besides those two either à Fame or Clamosa insinuatio or Priuate Iudiciall Denunciation or Canonicall Denunciation or Indicia or taking with the maner or other Notoriety of the fact or appeachment by some of the complices or collusion of the Accuser or the not obiecting in due time that euery of these do want or when the Enquiry tendeth but to a Spirituall punishment may seuerally any of them serue to warrant such Enquiry with some obseruations touching the nature of most of these That to proceed sometimes against an offence otherwise then vpon an Accusation chapter 8 or Presentment or then vpon an Appeale or Enditement which two at the Common law haue respectiue correspondence vnto the two former is no diuers much lesse any contrary or repugnant course to the lawes statutes and customes of this Realme this is prooued by Common law statutes and practice in proceeding informatiue and Punitiue with answere to certeine obiections made to the contrary How the second opinion here to be treated of is that no lay person may chapter 9 be cited of office in any cause but testamentary or matrimoniall and that the drift of that opinion is against proceeding of office in matters criminall the necessary vse and equity of proceeding sometimes criminally by the Iudges office in courts both Temporall and Ecclesiasticall Conteineth an answere to some further obiections made against the conueniency chapter 10 and reasonablenesse of proceeding against crimes of office That the lawes of the Realme do vse Enquiries and proceedings ex officio that chapter 11 they allow it in courts Ecclesiasticall with answere to some obiections that are made to the contrary Is set downe a replie to the Note-gatherers answers giuen to certeine reasons chapter 12 that haue bene made long agone for to shew the like course to be also practised in Temporall courts and an answere to his reasons brought to proue that in proceeding of office there is some contrariety vnto the lawes of England That the Enquiry ex officio against crimes is allowed both in Ciuill or Temporall chapter 13 courts and in Ecclesiasticall also by the two lawes Canon and Ciuill Conteineth an answere to such obiections as vpon the Ciuill or Canon lawes chapter 14 are brought against all proceedings of office in causes Criminall by the Treatiser and the Note-gatherer Enquiry and proceeding of office without an accuser and grounded vpon chapter 15 some other of the meanes afore prooued sufficient to enter into such Enquiry is approoued by sundry examples of Scripture An answere is made to such obiections as out of Scripture or Ecclesiasticall chapter 16 writers be made against criminall proceeding of office by the Note-gatherer and others THE SECOND PART of the Apologie published in defence of sundrie proceedings by Iurisdiction Ecclesiasticall CHAP. I. Containing a distinction of offences and seuerall kindes and ends in punishing them with the necessitie of punishments ALl the controuersies remaining to bee handled in either of the two partes ensuing doe rest chieflie about the maner of discouering of such crimes as are punishable by ecclesiasticall Iurisdiction And because many bee talkers of these matters who vnderstand but litle the true nature of them therefore to giue light vnto the whole disputation to make it appeare to be a matter of no small consequence but much to be stood vpon before I proceed further I mind to touch some necessarie points seruing for the better vnderstanding of all proceedings against crimes And first of the diuersitie of faults in generall then the seuerall kindes of punishment of
them and the ends of such punishing and of the necessitie of punishing them whereupon by consequence dependeth a necessitie also to haue them first discouered All 1 Gl. in c. peccatum de reg Iur. in 6. gl in c. si peccatum dist 1. de poenit August in quaest in Leuiticum faults are done either by committing as where in action we doe that which is euill or forbidden called properly Peccatum a sinne a crime and offence or else by omitting and leauing vndone some thing that we ought to do called Delictum à delinquendo a default negligence or contempt For to him that knoweth how to do well and doeth it not to him it is sinne saieth S. 2 Iacob c. 4. V. 17. Iames. And yet these two be often 3 c. d. si peccatum confounded together and the one is taken for the other in sundry writers Of both these sortes some there bee which by the Ciuill lawes are called Crimina ordinaria Such 4 L. 3. § poena ff de crim stellionatus as bee knowen by a peculiar name and haue in lawe a certaine penaltie expressed for the offenders in them by speciall set Magistrates thereunto appointed in which respect they are also called Crimina legitima And all other be Crimina extraordinaria so called either because they were committed vncertainelie to some as occasions fell out or for that they haue no peculiar and proper name in lawe or else no certaine punishment determinately appointed by lawe for those who offend in them and most of them are therefore for the varietie of them vpon the great varietie of spots which be in a certaine beast named 1 Plinius Stellio termed in that lawe Crimina Stellionatus and may be englished by the general terme of misdemeanors and such be many of these crimes which vsually are enquired of and examined in the Starre-chamber Of animaduersions or chastisements exercised against offenders for either of these kindes of faults 2 Aul. Gellius lib. 6. c. 14. some be by word onely and some be by deed Of those which be by word alone which we may English Aduertisements the one is significantly by the Grecians termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 admonition and the other 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 rebuke or reproofe The end of those animaduersions or chastisements which consist in words is referred onely to the reformation amendment of him vpon whom they are vsed by making him sorowfull for it more circumspect carefull how he carieth himselfe in the like afterward and thereby is a man said to be won by another The punishments which be inflicted in deed and not in word onely are in the Greeke tongue very aptly distinguished being of three seuerall sorts according to the seuerall ends vnto which they are referred For euery actual punishment and penaltie is either 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the first of actual punishments as Aristotle the most exact obseruer of the proprietie both of words matters 3 Aristot. 1. Rhethor noteth is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 it is such punishment as especially aimeth at his bettering vpon whom it is inflicted being a punishmeÌ„t tempered with mercie For 4 c. duo 33. q. 4. c. fraternitas 12. q. 2. c. qui sincera c. disciplina dist 45. it is wheÌ„ the partie is in deed punished as an offender yet the rigour of the penaltie is spared he coÌ„miserated and pitied as a man and therefore apt inough to offend through humane frailtie The end of the second sort of actual punishmeÌ„ts called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is to say is done for his cause that prosecuteth it or is grieued to the intent there may be some satisfaction This may happen in two seuerall sorts viz. either for the preseruing or reteining the dignitie of the 1 L. 1. 2. ff de legibus law or of the 2 L. obseruanduÌ„ ff de ossic Praes magistrate happening to be violated non enim licet impunè legesirridere transgrediendo as by fine or such like or els for the contentment of some priuate person that hath receiued iniury by such offence which in the French lawes is called Amende honorable and with vs in England are either dammages against him as is in actions of the case or els the offenders publik acknowledgement of the fault The end whereunto the third sort of actuall punishment called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 looketh is especially for the example of others and may be Englished an Exemplarie punishment being vsually inflicted for more heinous crimes Plato 3 Plato in Goegia affirmeth of this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 It is saith he done for others that they who beholde the punishment may at least for terrour thereof become better and amend And elsewhere in the same booke he saith to this effect It is required that euery one which is duely punished be either himselfe reformed and made better thereby or to be an example vnto others to reforme themselues at the least for feare of like punishment To which purpose the 4 Demosth. contra Neoeram Greeke Oratour also hath a like sentence of this matter Plato in his 5 Plato 9. de legibus bookes of lawes assigneth one other end of actuall and exemplarie punishment which is that they are also inflicted in grieuous offences vpon a very detestation and abhorring of the crime For which cause euen brute beastes yea and sometimes insensible creatures also are in a sort punished by whose occasion some heinous deede happeneth Of brute beastes slaine in this respect wee haue example in Gods 6 Leu. 20. V. 15. 16. Ioseph lib. 4. antiquiâ—… c. fin owne law The Romanes did of purpose nourish vp continually dogs in their Capitoll to giue warning of any secret approch by night and when the olde Gaules sacking Rome had almost secretly surprised the Capitoll also because the dogges at that time did not barke to giue warning they had their legges broken and in memorie of a detestation 7 Liuius lib. 7. Plin. lib. 19. c. 3. 4. lib. 1. cap. 22. heereof some dogges euery yeere afterward were put to a kinde of punishment for certeine were yerely splitted aliue vpon a twiforked stake made of elder-tree and set vp in that sort publikely betwixt the Temples of Iuuentus and Sumanus in Rome And we reade 1 Aeschines contra Ctesiphontem that amongs the Athenians insensible creatures as stones trees yron and such like which by their falling had casually occasioned the death of any man were solemnely as it were banished from thence and remooued from the common vse and sight of men The 2 L. 1. C. de falsa moneta Ciuill lawes do appoint the very houses to be ouerthrowen where forging of mony hath bene vsed And vpon the same groundes doth the Common law of this Realme giue Deodands to the Queene as thinges accursed and to be
either at her Highnesse pleasure destroyed or bestowed vpon the poore and the houses of attainted persons in treasons to the entent to haue them demolished and the trees about them to be rooted vp and so in this behalfe is also the law in France yet in frequent practices All which tend to signifie in what detestation abhomination such enormities are to be had and that men who are endued with reason may by such examples of law be admonished what punishment more iustly abideth them if they commit the same for which euen brute beastes and insensible thinges are so duely as it were punished For either it doth or at least wise ought to worke this effect in men In which respect Aristotle 3 Arist. 1. Rhet. ad Theod. c. 14. saith that punishment is a remedie or medicine to be vsed against faults And so 4 Lib 3. Var. epist. 14. Cassiodorus grauely writeth Remedium est contrapeccatum accelerata correctio Quicke punishment of sinne giues a remedie against sinne For all crimes and offences be in truth but as so many maladies and distemperatures in the body of the Church and Common weale which if they be tolerated to grow without restraint coercion of lawes will quickly spread like a cancker either to the destruction or to the great and apparant danger of both so that the necessity of punishments and penalties by the very endes vnto which they are referred may sufficiently be thus approoued vnto vs. The necessarie vse of them might be further enlarged and enforced also by the consideration of sundry who are interessed in this behalfe And first in respect of the Magistrate himselfe for it is said Non 5 c. dilecto de sent excomm 〈◊〉 6. caret scrupulo societatis occultae qui manifesto facinori desinit obuiare He that list not to oppose himselfe against a crime manifested vnto him may iustly be had in iealousie himselfe that hee is a partaker with the offender And againe 1 August in ep Ioan. tract 7. Charitas non est sed languor vbi mali mores digna poena non castigantur It is not charitie but faintnesse to be remisse in punishing offences And of such as haue authoritie to punish offenders it is said 2 Aug. epist. 50. ad Boniâ—… c. error dist 83. Si illos negligant perire permittant ista potiùs falsa mansuctudo est crudelitas And againe Error cui non resistitur approbatur But of that Magistrate which punisheth offenders it is thus said 3 Aug. in Enchirid cap. 72. Qui emendat verbere in quem potestas datur vel coërcet aliqua disciplina c. eleemosynam facit quia misericordiam praestat To an offender himselfe it is behouefull that hee may be recalled thereby from his wicked course for 4 Cassiod lib. 3. Var. epist. 14. malum cùm perseuerat augetur and 5 c. cum tanto de consuetudine tanto sunt grauiora peccata quanto diutiùs animam detinent illigatam Therefore 6 Iuo lib. 8. non corripere malos est eos occidere Et consuetudo peccandi tollit sensum peccati In respect of others also that might take encouragement to goe on in wickednesse or to commit the like punishments be very necessatie For in regard heereof Tullie saith 7 Pro Milone Impunitatis spes magna peccandi illecebra And in law it is said thus 8 c. vt clericorum § 1. de vita hon cler Iussum est rectoribus prouinciarum ne sinant crimina coale scere sed puniant ne facilit as ventae incentiuum tribuat delinquendi To like purpose Ambrose 9 Serm. 8. in psal 118. V. 2. writeth Nonne etiam cum vni indulget indigno ad prolapsionis contagium prouocat vniuersos And therefore it is grauely 10 c. sed illud dist 45. said by another Quae est ista misericordia quae bonitas vni parcere omnes in discrimen adducere Lastly in respect of the whole Church and Common wealth punishments are most needfull Examples are plentiful in Scripture where for the sinne of a few whole armies and societies haue bene punished This we may see in 11 Iosua 7. Achan whose stealing of the accursed garment c. was a cause of the ouerthrow of Israel in battell So for 12 1. Sam. c. 4. the sinne of Ely and his sonnes many thousands of Israel were slaine by the Philistims And to like effect 13 1. Reg. c. 2. Salomon speaketh when he giueth charge to kill Ioab Smite him saith he that thou mayst take away the bloud which Ioab shedde causelesse from me and the house of my father And 14 Ion. c. 1. for Ionas his disobedience the whole shippe was in danger to be wrecked Therefore an ancient Father 15 c. sed illud dist 45. saith That as one diseased sheepe infecteth the whole flocke so by the fornication or other crime of some one person often oftentimes the whole people is holden defiled Vpon these and such like considerations the light of nature did teach euen heathen men thus 1 l. ita vulneratus ff ad l. Aquil. Interest semper Reipub. delicta puniri And 2 l. 7. § finali ff de fideiuss poenas ob maleficia solui magna ratio suadet the whole common wealth hath an especiall and continuall interest and great reason also mooueth to haue wickednesse punished If then vpon so many weightie causes it be needful to haue crimes punished can it be denied but that all good means are to be vsed to bring them to discouerie and conuiction which must needs goe before the punishment of them 3 l. aut facta ff de Poenis Multis grassantibus exemplo opus est saieth the lawe where there be many transgressers it is needefull to haue some made an example to the rest and therefore 4 l. eum qui. ff de iniutijs Peccata nocentium expedit esse nota it is most expedient to haue euill mens lewdenesse made knowen and reueiled CHAP. II. There in is shewed how there are two sortes of prosecution of Crimes and Offences viz. by a Partie and of Office and the practise of them in Scripture and in the seuerall Courtes of this Realme declared NOw the meanes to bring any Crime and Offence into question before Iudges and Superiours in authoritie must needs be and so by all lawes and in all common weales generallie that I haue read of are either by prosecution of some partie or else vpon the Office of the Iudge the 5 Iul. Cla. lib. 5. § fin q. 3. Office of the Iudge is occasioned and as it were set on worke either vpon relation made vnto him by some other or vpon his owne meere motion without any relation from others which may happen as when an outrage or misdemeanor is committed in his sight or in some publike presence where he then happeneth to be In the law
of God and examples of holy Scripture I do not call to my slender remembrance where any criminall matters be appointed commanded to be prosecuted by a Partie but in very few places where any haue bene vsed who might properly be termed an Accuser or a Partie For albeit in sundry places of Scripture we finde Accusers mentioned yet in many of them such cannot be accusors or parties properly and strictly so termed but onely in a very large signification because their testimonies were receiued against those whom they denounced of crimes For where a man is partie himselfe making it as it were his owne cause and not the Iudges office there it is no reason that his owne testimony should be admitted 1 L. 1. §. in propria ff Quando appell Quia testimonium in propria causa vel quasi propria non valet And it may then be said to be a mans owne cause whereof he may reape benefit or dammage But more God willing shal be spoken hereof in his proper place Touching bringing crimes into question in Temporal Courts of this Realme that deale in matters ciuill or criminall it is to be first remembred that these Courts be of two sorts some vsing the Queenes immediate auctoritie yet the same still actually being in her Highnes as all the Courts at Westminster Others vsing but a kinde of mediate auctoritie deriued from the Crowne yet by her Graunt made in some sort their owne as deriued downe thereby vnto them For sundry subiects albeit they haue but a deriued power from the Queene as from whome through the dominions of this Crowne all iustice and iurisdiction to administer it whether Temporall or Ecclesiasticall doth originally flowe yet do not their Processes runne in the Queenes name nor her seale is vsed to them Of such Temporall Courts as sit but by such a mediate and deriued auctoritie from the Queene vnto them and therefore vse not her Seale or name some were in times past established for causes Martiall as the 2 Ric. 2. cap. Constables of England and the Earle Marshall his Courts whereof I haue very small experience and some for matters perteyning to the Peace And of these last some be for causes growing within the land as Courts of Counties Palantine of cities and townes corporate Sherifs turnes and Court-Leets or views of Francke-pledge and others be for causes Marine as all the Courts of the Admiraltie In temporal courts of counties Palantine in courts of townes and cities corporate fauing where some speciall custome preuaileth as in London many in Sherifs turnes and in Leetes the course of the common Lawe is for the most part obserued In Admiral courts the order of the Ciuill lawe of the Romanes because it is the written Common law of most nations not barbarous with whom wee haue to deale is especially vsed sauing where by Statute or Custome it is otherwise directed Of such courts as exercise the Queenes immediate autoritie some haue no letters Patents of Commission to direct them as the Parlement which is called and sitteth by the Queenes onely writ the Chauncerie from whence all originall writs do come and yet the L. Chauncellour or L. Keeper haue no Commission by letters Patents but receiue their authority by deliuery vnto them of the great Seale as I am infourmed the Starre-Chamber established of the Queenes priuie Counsell and some others to be called partly by praescription and partly by Statute the court of Requests by custome and praescription And the Counsaile in the Principalitie and Marches of Wales auctorised by Act of Parliament vnto such and in such maner as her Maiestie by instructions vnder her Roial hand-writing shal from time to time direct But those Courtes Temporall which sit by Commission and letters Patents for exercising in stead of her Highnesse the Queenes owne and immediate autoritie are either such as be vsually now holden at Westminster as the Courts of the Queens Bench the common Pleas the Exchequer and the Court of Wards and Liueries or in other places of the Realme abroad as Courts of Generall Assises Nisipriùs Gaole deliuerie Sessions of the Peace the Counsell established in the North parts the Court of Stannery in Deuonshire and Cornewall and as I haue bene infourmed the Court for triall of life and death at Halisax and such like I know that by speach and by vse also in sundry mens writings touching the aforenamed Courts such only as it were by a kinde of appropriation be most vsually called Courts of the Common lawe wherein matters of fact touching hereditaments contracts or misdemeanours be tried by a Iurie of twelue men because this triall is more frequent then any other But yet we are not to thinke that none but these may truely so be named as though the other were contrary to the Lawe Common seeing they be also allowed by the Lawes Statutes or Customes of this Realme aswell as those which proceede to triall by Iuries In the Courts afore specified that proceede to the triall of crimes by Iuries of twelue if there be any Appellour as of murder robberie or such like then may the prosecution most properly and truely be said to be done by an Accuser and at the prosecution of a partie If it be for the Queene whether it be by way of enditemenâ—… and be preferred by the Iudges themselues or by the Queenes Atturney generall or by some priuate person oâ—… be by way of Information put vp against some offence made poenall and not capitall and this either by the Atturney generall or by some other person then all such proceedings are in trueth done ex officio Iudâ—… And this either of meere and entire office as when the Iudge himselfe preferreth it or ex officio promoto as when it is first related and preferred vp vnto him and prosecuted by any other But in this last case there is a kinde of mixt proceeding betwixt both And albeit the Informer do prosecute partly for himselfe yet is it for the Queene also whos 's the Court is and so may be truly said to be of office This appeareth plainely in that the Appeller because he Is a meere partie is not so fauoured assisted and pâ—…iuileged in many respects as when the prosecution is instituted of Office for the Queene For the Appellee may put it to triall of battell with the Appellour which he cannot doe vpon enditement at the suite of the Queene Like wise whosoeuer doth preferre the endiâ—…ement or information though the defendant happen to be acquited yet the preferrer payeth neither costs nor dammages nor is subiect to any action in that behalfe as an Accuser and partie both is and ought to be But if the defendant be conuicted so the crime be not capitall but fineable then is the fine if it be imposed by the Court to come wholly to the Queene If by poenâ—…ll statute then most commonly it accrueth by disposition thereof partly to her Highnesse and partly to such priuate
Crimes by a partie mentioned in the Ciuill lawe as by reason of a mans publique charge and function also by way of Exception Supplication Cōplaint Delation and Accusation The true signification of the worde Accusatio his diuers acceptions definition and exposition thereof with some reason of the frequencie of Accusatio in Courtes of the Ciuill lawes in former times is also declared THe same and none other maner is likewise practised to bring offences into question by the lawes both Ciuill and Ecclesiasticall in such Courtes as either of those Lawes haue place and vse That is to say either by a partie or els by the Office of the Iudge Crimes in such Courtes may be brought into question before a Iudge vpon a parties prosecution whereof we are first to speake two maner of wayes The one Commendablie the other not so commendablie Commendablie in two sortes either by reason of some office and charge or by reason of a mans owne necessary interest By reason of a mans Office and duetie as when Triumuiri regij Procuratores Fisci Aduocati regij as French writers call them or as we speake and practise here in England when the Queenes Atturney generall who by duetie is bound thereunto preferreth inditement or information against some suspected criminous person or wrong doer This hath verie neere affinitie with that Denunciation or Presentment called Iudiciall which is to be spoken of hereafter And albeit there be a kinde of partie yet it is of the nature of proceeding of Office which I also touched in the Chapter next precedent The Commendable prosecution by a partie against an Offence in respect of a mans owne priuate interest is either by way of Exception and chalenge done in his owne necessarie defence and to auoide punishment or per viam querelae by way of Complaint for attayning his right Exception is sometimes taken against witnesses that be brought against vs to this intent onely that by obiecting and proouing them to be lewde or affectionate persons there may no credite be giuen to them in their depositiōs and not to haue them punished And this obiecting of Crimes by way of Exception hath not y e force of an Accusation Or els 1 l. 1. ff vi bon rapt l. 2. ff de tab exhib it is taken before issue ioyned against him that would accuse vs by our obiecting of some crime also vnto him Now if this be done onely to the end to repel him from accusing then hath it not the effect of an Accusation whereby he may be punished though he be proued guiltie But if he that so excepteth doe set downe the time place c. of such crime obiected against his aduersarie and doe also instant the Iudge to condemne him then shall it be proceeded in as in Accusation and may be called a Recrimination or Crosse-accusation made by the defendant The prosecution per Querelam is also of two sortes the one extraiudiciall when 2 l. 1 C. Retum amotatum a man oppressed humbly and ciuillie complaineth and expostulateth of some wrong done vnto him desiring remedie not so much to haue the other punished as that himselfe may by ordinarie course of lawe haue reason done him This may properly be called Querimonia a supplication to the Superior The other Querela is Iudiciall being a kinde of Appellation 3 l. Arbitrio vbi gloss Bart. ff qui satisdare coguntur and is either done by complaint vnto the soueraigne Prince of some wrong done by an high Court such as Praefectus Praetorio kept among the Romanes from which none Appellation lieth or els is a Complaint vnto a superiour Iudge of refusall or delay to do iustice by his inferiour Iudge with vs commonly termed a double Querele Thus much for the most commendable sortes of prosecution of offences instituted by a partie Of those which be not so commendable prosecutions of offences by parties one is called Delatio being the more odious and base the other is Accusatio properly so termed Delatio like wise is of two sorts The one may be described to be a 4 l. 10. §. Qui nomen ff de iure patr secret accusation or imputation of some crime against any made vnto a Magistrate by him that is no way particularly interessed in the cause Against such was that law 5 l. pen. C. de Delatorib lib. 10. of Constantinus conceiued whereby it was prouided that no priuate person should be a delatour or preferrer vp of crimes and that none should be put vp without the Aduocate of the finances or reuenues of the crowne whom we call the Atturney generall And of such Delatours or Tale-carriers was this woorthy saying of an Emperour meant Princeps qui delatores non castigat irritat Priuy accusers backbiters take encouragement enough from such a Prince as will but heare without giuing them any rebuke Which saying Suetonius 1 Sueto in Domit. attributeth to Domitian and Plinius 2 Plin. in Panegy de Traiano vnto Traian There is a second sort of Delatours preferrers vp of crimes which deale more openly then the former And we finde also in law two kindes of these The first be a kinde of Calumniatours or Sycophants 3 l. nostris C. de Calumniator that preferre publikely yet vnder other mens names and persons by them suborned and excited some criminall matter against any person The other sort be those who for gaine or reward do in their owne names preferre vp criminall and poenall matter against others And of these some doe informe of conceiled landes or goods due and escheated to the common treasure of the Crowne yet supposed to be deteyned wronfully by any others And these by the Ciuill lawe 4 l. ex varia C. de Delatorib lib. x. are said to be odious and hated of other men because they doe it for no duetie to the Prince or common weale but vpon a greedie desire to enioye to them selues part of the gaine by others losse being by that law some time a third and sometimes a halfe part of that which they finde in trueth to haue bin deteined by wrong intruded vpon or vsurped Others be mentioned there also who preferre informations against offenders of such lawes as do inflict mulctes pecuniarie penalties for the offence vpon hope of such gaine as by those lawes is assigned to come vnto their share This kind of Delators in this Realme we call Infourmers or Promoters though their prosecutiō in this Realme do much participate as afore is shewed with that which is called ex Officio promoto in that respect be greatly priuiledged Among the Romanes such were called Quadruplatores because commonly the fourth part of the penaltie was awarded vnto them So that by like reason our Infourmers may be called in Latine Triplatores when they haue a third part and Duplatores when they haue the one halfe as they haue in this Realme vpon penall statutes most
vsually In what detestation and hatred this kinde of men though not altogether vnnecessarie were had amongs the old Romanes this saying of Quintilian doth manifest 5 Quintil. lib. vlti cap. 7. Ad deferendos reospraemio duci proximum est latrocinio To be induced for reward or gaine to preferre criminall matter against offenders is next a kin to robberie And in deede Delatours were farre more stomacked and maligned then other Accusours as may bee gathered by these places in the Ciuill lawe 1 l. 3. C. de Malefic Wee doe iudge him that accuseth in such a crime to deserue rather rewarde then to bee called a Delatour And againe in another place 2 l. Nulli in fine C. de Epis. Cleric Let not such feare either the name or suspicion of Delatours The last of those wayes by which a partie brings offences into question and discussing before a Iudge is Accusation It is called 3 Isidor vt in c. forus de verb. signif Accusatio ab Ad Caussa quia Accusator quasi ad causam vocat There bee other wordes of neere signification vnto this yet not the same altogether as postulare when it is vsed with the ablatiue case Postulare aliquem crimine insimulare incusare and such like But there is a difference noted betwixt this last and Accusation which is this We are saide saieth 4 Servius in prim Aeneid one properly incusare such as bee our betters and to accuse those that be our equals or inferiours But this difference is not much obserued 5 l. Qui accusare C. de edendo l. Si maritus § Si negauer ff de adulter This worde Accusation is sometimes so generally taken that it signifieth an Action in a Ciuill cause like as on the contrary side Action is taken for Accusation Tullie pro Milone nameth it Actionem Perduellionis But most properly it is called Accusation when it is intended in causes Criminall We reade of inwarde and of externall or outwarde Accusations Internall Accusation is of a mans owne conscience Such is the Accusation spoken of by Salomon 6 Prouerb 18. vers 17. Hee that is first in his owne cause is iust or as the vulgar Latine translation readeth it The iust man is the first Accuser of himselfe Externall or outward Accusation is either Priuate or Publike Priuate is either betwixt enemies or betwixt friendes That priuate Accusation and imputation which is among enemies is of three sortes either spitefull vpbraiding called of the Grecians by the generall name 7 Plutarch in vita Publicol of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a worde also fitting euery Accusation or reproche and reuiling called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or els Calumniation that is malicious or false wresting of his enemies wordes or actions to an offensiue purpose Priuate Accusation of one friend touching another is nothing els but a friendly expostulation with him that is supposed not to haue dealt singlie or considerately in the course of good friendship called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the Grecians That Accusation which is publike is either ciuillie moued that is for priuate amends vnto the partie grieued or criminallie that is for some publike punishment whether it be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And it is that Accusation which here we especially treate of This publike Accusation is sometimes done ore tenus that is by bare wordes without writing which the Grecians doe expresse also by the aforesaide name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 But most vsually publike Accusation is made by writing That which is conceiued in writing in a more large signification conteyneth and reacheth euen vnto those preferrings of crimes afore spoken of that are done by Exception or Chalenge by Complaint or by Delation And vnto this publike Accusation which is of more generall acception that definition of Aristotle agreeth viz. that it is a publike declaration against some of iniuries or crimes committed But in the strict and proper signification it is taken for that solemne Accusation termed by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and also sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when as this latter is not taken generally but for the most especiall kinde thereof onely The effect of this Accusation when the crime declared is proued to bee true and by arguments conuicted is called by the Grecians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is 1 l. indicasse ff de verb. signific as the Latines doe expresse it arguere There is also another different acception from the former of the worde Accusour that is not hitherto touched which is when that worde is applied 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vnto any that testifieth some criminall matter against another And in this signification wee doe finde it very 2 Vide infrâ—… cap. 15. vsually taken in holy Scripture as shall afterwarde more fully appeare So in sundry statutes of this Realme as namely in these wordes of a statute viz. duely accused or detected by two lawfull witnesses 25. Hen. 8. cap. 14. and in such other statutes whereby is required that the Accusours be brought face to face against the prisoner meaning thereby such witnesses as are to giue euidence vpon their oathes against the partie conuented Hereof we haue diuers examples and namely in these wordes of a statute 3 1. Ed. 6. ca. 12. in fine That no person shal be conuicted c. or suffer c. vnlesse the same offendour c. be accused by two sufficient lawfull witnesses as shal willingly without violence coÌ„fesse the same Where the witnesses sayings are called Accusation their Depositions Confession Likewise in the same Kings dayes where it is thus prouided 1 5. 6. Edw. 6. cap. 11. That no person shal be convicted c. for any treasons c. that nowe be or hereafter shal be c. vnlesse the same offendour be thereof accused by two lawfull accusers which saide accusers at the time of the arraignment of the partie accused if they be then liuing shal be brought in person before the partie so accused and auowe and mainteyne that that they haue to say against the partie to proue him guiltie of the Treasons or Offences conteyned in the Bill of inditement So that here those that giue euidence to prooue the matter of the enditement which must needes be the witnesses are called Accusers which termein these like statutes seemeth to haue bin borrowed from the coÌ„mon speach of men who often vse to say thus Who is able to accuse me of such or such things meaning to testifie against them rather then that the true proprietie of the worde was there followed For Iustice Brooke in his Abridgement testifieth 2 Tit. Corone nu 220. That the common triall at the Common lawe is by Iurie and witnesses and not by Accusers So that albeit witnesses touching offences by some statutes and by vsuall speeche of the vulgar sort be
termed Accusers yet by his opinion they doe in very deede differ much in that the one is as he saith the triall of the Common lawe but not the other The true difference betwixt them he there prooueth also out of the Ciuill lawe vpon relation made vnto him by a Doctour in that facultie and willeth it to be noted as a saying which hee well alloweth By the Ciuill lawe sayeth 3 Brooke ibid. he Accusers be as parties and not as witnesses For witnesses ought to bee indifferent and not to come till they be called But accusers doe offer themselues to accuse For it is a good chalenge of a witnesse to say that hee was one of his accusers Quod nota Nowe howe vnreasonable were it to admitte the testimonie of a partie in his owne cause So that by the Ciuill lawe by which this prosecution is most properly handled Accusation truely so called is defined to bee Ius vlciscendi solenni poenali iudicio poenas ac delicta A right which the lawe yeeldeth to any of prosecuting crimes and offences for reuenge and punishment by publique and solemne iudgement For the explaning wherof we haue to note in this behalfe that crimes or offences be of two sorts Some be priuate whereby a cōmon person onely and no publique person nor the state of the Common wealth otherwise then by consequence is offended And this kinde cannot be prosecuted but by the very party grieued or by some of his kinne and propinquitie And it may be vrged either to the end of ciuil reuenge that is amends pecuniarie called actio vel accusatio criminalis ciuiliter or to the ende of a publique punishment called accusatio criminalis criminaliter mota The crimes that be publique are those that be heinous as more deeply touching the state of the whole cōmon wealth and publique peace then the former and therefore may be prosecuted by any man being called populares actiones quia competunt cuilibet de populo 1 l. de his C. qui accusare non possunt sauing that certaine persons for especiall causes are by lawe from accusation to be repelled Vnder the word of solemne iudgement be three things conteined and vnderstood that such an Accusour must vndergoe First 2 l. finali C. de accus he must present the name of the accused person in publique iudgement as an offender in such a speciall crime Then must he subscribe his owne name whereby he is said vinculum inscriptionis accipere And he must also be committed vnto the like custodie and ward that the Accused in regard of the qualitie of the fault and dignitie of the Accusour is to susteine vntill the suite be finished By this bande of Inscription or Subscription the 3 l. qui crimen C. qui accusare non possunt Accusour bindeth himselfe to prosecute the sute and professeth withall that if he proue not the Crime which he layeth against the Accused then he himselfe will and shall endure the same punishment that such crime when it is in deede committed doth deserue How vnusuall soeuer this be among vs or how seuere this course of punishment may seeme vnto some yet do we find the equitie of it in Scripture and that it is to be inflicted vpon such that calumniously impute false crimes vnto others If vpon diligent inquisition saith 4 Deut. 19. V. 16. sequent the Lord it be found by the Iudges that the witnesse is false and hath giuen false witnesse against his brother then shall ye doe vnto him as he had thought to doe vnto his brother c. Thine eye shall haue no compassion but life for life eye for eye toothe for toothe hand for hand foote for foote How much more then vpon a wilfull Accuser which calumniously seeketh for reuenge sake vpon an vntrue Accusation so knowen vnto himselfe to bring another man into so deepe danger An 1 Dan. cap. 13. example hereof we haue in the stoning of the two Elders that calumniously accused or witnessed against Susanna This poenatalionis or retaliation is also allowed by sundrie ecclesiasticall writers in like case as by 2 Epist. 2. ad Episcopos Siciliae Eutychianus and 3 Sixtus 3. Epist. 2. ca. 4. ad Episcopos Orientales Sixtus auncient Bishops of Rome For witnesses be sometimes compelled to beare witnesse who perhaps may slippe by affection inconsideration or want of remembrance which is therefore more excusable in them then in Accusers insomuch as these Accusers come willingly without any excitation of others to doe it For nemo inuitus agere vel 4 l. 1. C. vt nemo inuitus ag accusare compellitur No man is compelled to bring an Action or an Accusation sauing in especial cases as 5 l. Manichaeos C. de haeret in Heresie Omnes enim haereticum prodere atque accusare debent and in Treason also thus farre that he which doth not at least reueile it though a man be not bound to prosecute therein as an Accuser is to be punished as partaker of the Treason But this Inscription ad poenam Talionis to endure the penaltie due if he be not able to prooue his Accusation is 6 l. Fin. ff de priu delict l. fin ff de furtis not required in Accusations of priuate Crimes whether they be Ciuillie or Criminallie mooued and prosecuted Here perhaps some will marueile how this prosecution of Crimes by way of Accusation coulde be so vsuall as it was in former times in the common weales of Athens Rome and such like insomuch as it became there to be the most ordinarie meane of all others to bring Crimes and offences into question considering the great troubles and dangers that by Lawe did accompany the Accusers Such therefore are to vnderstand that fewe or none Accusers would deale so vnconsideratly as to vndertake it vntill they thought themselues sufficiently furnished with witnesses and other proofes able to conuince them whom they accused Next they are to remember the vse of it to haue bene greatest in populare Common weales where the readiest steppe to attaine vnto most honourable offices and dignities next vnto seruice in warres was to be able to speake and deliuer their mindes eloquently before the whole people who were the soueraigne Iudges in most of those causes either by way of Accusation or els in D◅fence of others being by Accusation called into dangerous question of their liues limmes honour libertie countrey or of their goods and landes Thirdly that when it was in most frequent vse the people were heathen and vninstructed in the true knowledge of God so that they thought to put vp an iniurie done either to themselues or to their friendes to be great pusillanimitie and a token of a base minded man and to be in deede a vice very discommendable euen as the contrary vice thereunto is viz. of doing Iniurie For so 1 Arist. lib. 5. Ethic. Aristotle teacheth in his Morall philosophie
the defendant was regard alwayes beyng had to his dignitie 1 l. Qui crimen C. Qui accus non possunt He was also then bound with good Caution of suerties to prosecute the suite Much like to the first of these was that lawe which was established by Crem 2 Suidas in verbo Bulgar the lawe-giuer vnto the Bulgarians who prouided that none accuser should haue audience giuen vntill being bound and brought to the torture it were by his owne examination found out vpon what probable grounds his accusation rested In the course of prosecution much trouble may grow vnto Accusers especially 3 Carrer de Hae. res cons. 117. in the crimes of Treason or Heresie For in both these not onely the defendant but the Accuser also is subiect to examination by torture vbi non subsunt indicia where no plaine or probable matter appeareth whether of them saieth truer The Inscription also aforesayd bindeth the Accuser to endure some punishment vpon detection of any rashe or vndue practise in the Accusation This rashnesse 4 l. 1. ad S. C. Turpillianum or lewd practise consisteth in three seuerall points and euery of them subiect to their punishments The first is when the Accuser doeth praeuaricari that is collude with the defendant in dealing against him Dicis causa pro forma tantùm for fashion sake perhaps to keepe others from it as by suppressing or concealing the best proofes and by admitting of false and slender defences brought and alleaged in the defendants excuse The second is when he doeth Tergiuersari that is giue ouer and desist from his prosecution vpon corruption c. The last is when hee doeth Calumniari that is wilfully 5 Gloss. in Clem. 1. de sentent re iudicat impute false crimes vnto the defendant which hee cannot prooue or make any vniust petition or by any other meanes deale deceitfully maliciouslie This may bee resembled to that which wee call at the Common lawe Conspiracie sauing that onely damages in money be giuen thereupon And this perill doeth fall out chieflie and is discouered vpon the euent of the suite when it is brought to an ende For if the Accuser be pronounced guiltie of such Calumniation then must hee endure the same punishment which the accused partie ought to haue suffered if hee had bene found guiltie called by Aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and by others poena talionis This appeareth by the Ciuill lawe and is allowed also by the Ecclesiasticall By the Ciuill as namely by the Constitution of the Emperors Honorius and Theodosius where it is said to an Accuser 1 l. 17. C. de accus inscrip Necimpunitam fore nouerit licentiam mentiendi cum calumniantes ad vindictam poscat similitudo supplicij Let him not thinke hee hath free libertie giuen falslie to accuse others that without punishment seeing the course of Iustice requireth that for due reuenge Calumniators doe suffer the like punishment which they vniustly would haue brought vpon others It is also allowed by the lawe Ecclesiasticall 2 Damalus ep 3. ad Steph. Archiepisc For Calumniator si in accusatione defecerit talionem recipiat If an Accuser bee found to calumniate let him receiue the punishment due to the crime imputed 3 Hadâ—…ianus 2. q 3. c. qui non Qui non probauerit quod obiecit poenam quam ipse intulerit patiatur He that prooueth not his accusation let him suffer the same punishment into the danger of which hee brought another man And to the 4 Sixtus c. 4. in 1. volum concil verie same effect did Sixtus an ancient bishop of Rome write to the bishops of the East partes Yea besides the like penaltie it was decreed in a Councill 5 Concil Braccar 2. Can. 8. An. Dom. 610. that the Accuser that fayled in proofe should bee excommunicate If the Accuser can not saieth the Canon of the Councill prooue by witnesses that which hee obiecteth then let him endure that excommunication which the partie accused should haue done if hee had bene conuicted Neither can this be thought too grieuous for him that willinglie and maliciouslie without iust cause will conspire against an other let him impute his punishment to his own follie Actor debet venire paratus Besides the like punishment such an Accuser by the old 6 Gelasius ibid. c. si quis Canons was also pronounced an infamous person But from the grieuousnesse of this poena talionis or for Calumniation presumed all publike Officers who 7 l. post legatum §. Aduocatum ff de his quibus vt indignis l. qui cum maior §. penult ff de bonis libert by vertue of their office are bound to Accuse bee cleerelie freed and exempted Such are called Aduocati Promotores fiscales regij The kings Attorneis or Solliciters generall The reason hereof was because they did not of their owne voluntarie will or for reuenge as ordinarie Accusers vndertake such prosecution but for the benefite which redoundeth to the whole common wealth by the punishment of Offenders Besides they were not to reape any commoditie or gratification thereby 8 Bart. alij in l. Si quis in graui §. vtrum ff ad S. C. Syllanianum vnto themselues by part of the penaltie or fine whereby they might bee corrupted or drawen to doe more theÌ„ otherwise were expedient And therefore in both these respects such are freed from all suspicion of wilfull Calumniation or reuengefull bringing of men vnto a dangerous question and triall Thus much how perilous this Accusation is How hatefull it is vnto others and detested of most men for one willinglie as with delite to become a publike Accuser may appeare first by the restraint thereof 1 Arist. 6. l. Polit. cap. 5. Aristotle saieth That in a well ordered common weale Accusations ought to be most rare That very lawe by authoritie whereof it was most vsed prouideth That it shall not be lawfull at any time 2 l. Hos accusa §. l. Iulia. ff de accus l. cum rationib C. qui accus non possunt for a man to accuse more then two And an Accusers voyce is called an abhominable or deadlie voyce especiailie his that will Accuse the master of that familie where hee is commorant Let such an Accusers breath saieth that lawe 3 l. 20. C. Qui accus non possunt in the very beginning before it be heard be stopped with a sword Vocem enim funestam amputari oportet potiùs quà m audiri Furthermore it is naturallie giuen to vs all to pitie euen strangers when they bee brought into danger and distresse by others and in sort to abhorre them that doe wilfullie procure it They ought saieth Tullie in this behalfe 4 Cic. pro Muraena to weie with themselues that an Accusation is no meane matter but of great importance It is much for a man to addresse himselfe vnto
contagious plague vnto it Lastly Accusation may not be vsed for gaine and lucres sake For such Accusers especially are odious to all men Another heathen writer could say thus heereof 1 Quintil. siue Tacitus de claris Orator The vse of this gainefull and bloudie eloquence is sprung vp of late times by corrupt custome and was deuised as one Aper was woont to say but instead of a iaueline or dart to thrust men thorow with In locum teli repertus So that if men could keepe themselues strictly within these former boundes then prosecution by Accusation would neither be so perilous to the Accuser nor yet so hurtfull vnto others but that it might still haue a tollerable and profitable vse in Christian Common weales And then that which Tullie writeth might haue place where hee sayth that 2 Pro S. Roscio Amer. it is profitable to haue many Accusers in a Common weale yet so as that men be not abused by such Accusations And thus much for prosecution of crimes by a partie CHAP. V. Of the seuerall acceptions of this word Officium the signification of Inquisitio Quaestio Crimina ordinaria extraordinaria Cognitio ordinaria or perpetua extraordinaria the reason why Enquirie by Office came in place of Accusation of Enquirie generall and speciall Enquirie speciall ex officio nobili siue mero mixto promoto and the priuileges of proceeding ex mero officio aboue the other NOw because the aforesaid Cautions be so hard to obserue and for that Accusation is so odious and of so perillous consequence albeit these foure points were kept in case either the Magistrate or people among whome wee liue should not so construe our doings as perhaps we doe sincerely meane them therefore where there be so many difficulties incident to Accusation lest crimes and offences should remaine wholly vndiscouered and so vnpunished to the great detriment of the whole body of the Common weale and Church It was very necessarily prouided in most places of the world to haue the Iudges office by Enquirie to supply this want and scarsitie of Accusers and parties which is the other generall meane afore spoken of whereby offences may be brought into question examination The Office or duetie of the Iudge is the cause efficient of this prosecution and Enquirie is the peculiar effect and act which in Criminall matters that cause produceth or the course whereby the Office doth proceed and is that kinde of prosecution which is counterdiuided against Accusation and prosecution by a partie The word Officium in the Ciuill law from whence it is taken hath diuers acceptions It signifieth either priuate dueties and thinges of conueniencie to be regarded and practiced in the common life and societie of man with man or els some more publike function And in this latter signification we reade of it to be taken two wayes By the first for a ministeriall function vnto some Court hauing iurisdiction And by the second for the power authoritie or iurisdiction it selfe of the Court I doe obserue three seuerall ministeriall functions termed in the Ciuill lawes by this name Officium The first are those persons that were publikely appointed to present crimes vnto the Magistrates as in these words 1 L. ea quidem C. de accus inscrip Quae per officium praesidibus nunciantur The second denoteth vnto vs an Apparatour as in these words 2 L. 1. C. de Ap. parit Procoss lib. 12. Officio quod tuis meritis obsecundat non Curialem quenquam nec excaeteris corporibus volumus aggregari c. The third an Actuarie that entred the acts of the Court as in these lawes 3 L. 11. C. de Numerarijs Actuarijs li. 12. Officio tuae magnitudinis datis precibus postulant c. And againe 4 L. 1. C. de offic Comitis sacri patrimonij Officium Hellesponti adijt rogauit c. In both which lawes by the word Officium an Actuarie is vnderstood But Officium signifying the authoritie and iurisdiction of the Iudge is that power whereby he may deale of himselfe without the petition or instance of a partie And this Office is exercised either in actions Ciuill or in Criminall In actions Ciuill 5 L. 56. ff locati l. 51. §. fin ff de act empti sometimes the Iudge doth of Office decree a thing which he findeth to be equall besides the action and besides the bond whereupon the action riseth and 6 L. Si longiùs §. 1 ff de iudic l. cum siliusfam ff de reb creditis l. 7. C. de iudic alibi passim sometimes also vpon a point in equitie hee relieueth by his Office such as the strict law giueth none action vnto Calistratus reduceth all causes Ciuill wherein a Iudge hath conusance extraordinarie vnto these two generall heads Per cognitionem 1 L. 5. ff de extraord cognit viz. extraordinariam siue officio Iudicis factam aut de honoribus siue muneribus gerendis agitatur aut de re pecuniaria disceptatur A Iudge exerciseth his authoritie extraordinarie in causes Ciuill either when hee taketh knowledge of bearing offices and functions or of causes pecuniarie But in causes Criminall hee practiseth this authoritie of Office aut cum 2 Callistratus ibid. de existimatione alicuius cognoscitur aut cùm de capitali crimine quaeritur when hee sitteth to take knowledge whether a mans honour or reputation ought to be atteinted or when he enquires and makes inquisition of some crime capitall viz. whereby a mans libertie countrey or life may bee endamaged This Office Ouid touched 3 Ouid. lib. 1. de Tristib in these wordes Iudicis Officium est vt res ita tempora rerum Quaerere The effect of the Iudges Office and the course which hee thereupon doth followe is called Enquirie Inquirere saith Bartolus est 4 Bartol in l. transigere nu 13. C. de transaction quasi intus quaerere diligentiùs abdita indagare secreta detegere in iudicium deducere It is to search into a matter deepely and carefully that is kept close to bring it to triall of iudgement which it deserueth This Enquirie in the old common wealth of Rome was more commonly called 5 l. 1. § item illud ff de S. C. Syllan Quaestio Which word hath two significations in that lawe The one more generall signifying any enquirie The other that enquirie and examination which was vsed vpon bond slaues and men of the meaner sort by torture Quaestionem sic accipimus sayeth the Ciuill lawe to this purpose non tormenta tantùm sed omnem inquisitionem defensionem or as another reading hath it detectionem mortis Where we see that the worde Inquisitio is also vsed Of this worde Quaestio such as dealt by it were called Quaesitores and so doth 6 Virgil. 6. Aeneid Virgil call Minos a Iudge quaesitorem Out of which by abbreuiation came the
of custome turned to a more moderate and sase course not onely for the Prosecuter but also for the defendant For mitiùs agitur 2 Abbas in ca. inquis de accusat cum inquisito conuicto quà m cum accusato He that is cōuicted by way of Accusation especially by the Canon law is more grieuously punished then he which is conuicted vpon Enquirie Which yet is alwayes so tied that being a prosecution of Office the Iudge needs not lend his assistance but where he seeth good and probable inducement to ground it vpon All Enquirie is either Generall or Speciall 1 Bald. in l. ea quidem C. de accusat Generall Enquirie is a preparatoriecourse proceeding of meere Office purposed to enquire and finde out criminous persons within some certaine territorie or compasse This is of three sortes The first is generall in respect of the persons but speciall in respect of the fault as when the Coroner inquireth of a murder committed and no certaine person knowen or an Ordinarie of a forgerie in some cause Ecclesiasticall And by this 2 l. 1. C. de falsa moneta l. 1. C. de rapt Virgin Enquirie generall in certaine hainous crimes euerie priuate person may enquire to bring the Offenders in by lawe to be iustified The second is generall in respect of the faultes but speciall in regard of the persons as when some Hospitall College or Cathedrall Church is visited The third and last is generall both in respect of the persons and faults as a generall visitation of a whole Dioecesse or an Enquirie made by the grand Iurie at an Assise or Sessions of the Peace for the whole Countie 3 Summa Antonini part 3. t. 9. c. 7. Speciall Enquirie is when some certaine and singular person and crime also is enquired of and brought by due course of iudgement vnto triall to the intent to be punished This Enquirie is done either when there is a kinde of prosecuter besides the Iudge albeit the proceeding bee of Office or when there is absolutelie no prosecuter besides the Iudge himselfe against the partie conuented There may besides the Iudge be prosecuters of the Office in two seuerall degrees One that doeth prosecute throughout the whole suite as when an Information for the Queene alone or for the Queene and Informer is put vp at the Common lawe and is termed by the lawe Ecclesiasticall Officium promotum The other which doeth but prosecute or sollicite in some part of the suite as by furnishing the Court with proofes c. which is called Officium mixtum in some temporall courtes a Relater Likewise 4 Abbas in e. cum dilectis de Purg. canonica Officium promotum is of two sortes The first is when a man voluntarilie offereth himselfe to prosecute called Promotor voluntarius officij and he differeth a litle from a Partie The second is when the Court assigneth one to sollicite the Office who is termed Necessarius promotor officij because hee may not refuse this emploiment But when no persecuter at all doeth stirre in the matter then the Court onely doeth it in duetie to the Common wealth and to see sinne and disorder punished Then is this Enquirie termed Officium simplie or Officium merum by the Canon lawe and by the Ciuill lawes Officium Nobile as of more woorth and dignitie then the other course which is by a Partie and at his petition and instance For by a more base appellation in comparison of the former that lawe termeth this Officium Mercenarium ac si merccde aliquâ propositâ alterius petitiont quasi deseruiret that-is when the Office of the Iudge is as it were hired and employed but at another mans becke to serue his turne For albeit in temporall courtes of other realmes long custome which is 1 Crauetta Consil 238. nu 7. the Wel-spring of all their iurisdiction hath 2 Alph. lib. 3. c. 11. established the verie same course of proceeding in causes criminall euen at the instance of a Partie with that which may bee done when the Office of the Court alone proceedeth neuerthelesse the lawe it selfe hath giuen greater priuiledges vnto proceeding of Meere Office then vnto the other which was some occasion also why it was the rather called Nobile Officium Iudicis The first priuiledge is that whereas by lawe nowe altered by Custome an Accuser or Partie properlie so called is in danger of Poenatalionis if he faile in his proofes Propter praesumptam Calumniam yet the presumption and entendment 3 Arg. c. in nostr de procur in c. ad audientiam de praescrip of lawe runneth not so agaynst a Iudge exercising but the publike lawes by his Office as it doeth against a Partie And therefore is hee not subiect to that penaltie as a prosecuteris 4 l. iniuriarū §. 1. ff de iniurijs Non videtur facere iniuriam qui iure publico vtitur The next priuiledge by lawe yeelded vnto proceeding of Office in a Criminall cause which is denied to a prosecuter yea though he bee not an Accuser or Partie properlie so called is that the Iudge proceeding 5 Panor in c. qualiter el. 2. de accusat of Office may giue an othe to the defendant to answere some criminall matter But it is otherwise when the suite is at the instance of a partie which prosecuteth because the defendant ought not to bee driuen to furnish vp his aduersaries intention Thirdly an Ordinarie or delegate Advniuersitatem causarum that proceedeth of Office is not bound to make proofes of the 6 Pan. ibid. alij DD. fame sauing before his superiour Iudge if an appellation be brought and doe lie because it sufficeth that the fame is apparant and knowen vnto himselfe But it is otherwise in a delegate of one cause or vpon the instance of one that voluntarily prosecuteth Fourthly when the sute is at the instance of a partie contrarie proofes for proofe of the defendants good fame are admitted But this need not be granted vpon proceeding of Office because 1 Arg. c. in nostr de procur c. ad audientiam de praescrip the law doth not entend and presume against the sinceritie of the Iudge as against the partie prosecuting Fiftly vpon the instance of a voluntarie prosecutour or preferrer vnto the Office 2 Hostiens in c. cum clamor de testibus fit litis contestatio as I may English it an issue is ioyned betweene the two parties But if either one be but a soliciter and assistant to the Office or els a preferrer assigned by the Iudge or that the proceeding be of meere Office there is then no contestation in the sute properly so to be termed but a kinde of contradiction in sted thereof required betwixt the fame or denunciation c. on the one side and the defendants answere by deniall on the other side Lastly when the proceeding is of Office 4 Arg. c. cum clamor de
to haue offences punished which could not so readilie bee done if by this way of denouncing they were not at all brought vnto the Magistrates notice A matter otherwise likely to happen by reason of so many difficulties that accompanie Accusation and so many exceptions which may by lawe be taken both agaynst Accusers and Denouncers Those who haue 1 Salycetus in l. ea quidem C. de accus Clarus li. 5. §. fin q. 7. a publike charge of Denouncing and Presenting whether they serue in Temporall or in Ecclesiasticall courtes ought vpon paines otherwise to be inflicted vpon them to present such offences as come to their knowledge yea though otherwise they be not opened or published commonly abroad Likewise in courtes Temporall 2 Clarus vbi supra vers Sed quaero this kind of publike denunciatours ought to present some matters which the lawes perhaps doe not punish at all as namelie if any kill an Outlawe or Bannito in places where such lawe is still in force Also such Officers must present all casuall violent deaths because albeit perhaps nothing doe presently appeare but that such death did casuallie happen yet in processe of time it may fall out to be discouered that it was by some malefactour Lastly when such as haue charge to enquire generally and to present either doe not know certainlie whether an offence be committed or not a thing which may happen in such crimes whereof no traces or footesteps after the fact done can remaine as in Adulterie diffamation and such like or where a fact doeth appeare but the Author thereof is not knowen as may bee in murder sacrilege forgerie c. in both these cases if the commō voyce and fame doe runne against any person in particular they are bound to present euen such fame of the offender as wel as the crimes themselues together with all the circumstances they can learne thereof who be more perfectly instructed touching it that perhaps can giue particular and more full euidence He that is a denouncer by vertue of his Office is alwayes in his presentments to obserue that he bee not found to haue preferred matter agaynst anie by manifest calumniation or wilfull conspiracie For 3 Alph vbi supra if this appeare euidentlie to the Iudge euen such a publique denounceour is not only to pay charges vnto him whom he hath maliciously vexed but is otherwise also vpō the Iudges Office to be punished for a Calumniatour But for Calumniation 1 l. 2. C. qui aceusare non possunt onely presumed which is then entended and presumed when the defendant is cleared onely because nothing can be prooued against him then he that is a Denounceour by reason of his charge layd vpon him shall not be preiudiced Neuerthelesse he that is a voluntarie Denounceour or preferrer 2 Gloss. final in c. dilecti de dolo contumacia vide Angel de malef Marian. c. Qualiter cl 2. de accusat if he doe but faile in his proofes shall be thereupon condemned in expenses and be otherwise also punished albeit not so deepely as an Accuser yet extraordinarily by the Iudges Office because at his instigation and solliciting the Office doeth almost no lesse then an Accuser doth The reason hereof is because in that he proueth not his Complaint the Lawe presumeth euen hereupon that he did but moue it by Calumniation for vniust vexation Which thing doth often keepe euen many good men backe from all Denunciation of crimes whereunto they are not specially bound as S. Augustine 3 August Hom. 50. de poenitentia testifieth in these words Good men for the most part doe beare with other mens faults and holde their peace because they want sufficient euidence in lawe to approue that to the Iudges which themselues knowe Yet there be certaine cases whereby euen a priuate Denounceour and Informer shal be excused frō any Calumniation presumed only viz. when he makes not proofe of that which he obiecteth The first is when he did preferre it by a kinde of Necessitie 4 l. cum fratrem C. de his quib vt indignis as when the heire prosecuteth the death of him to whō he is heire Secondly when it proceeded 5 l. Quamuis C. de adult vpon an extreme griefe as when the husband accuseth his wife of adulterie and yet perhaps faileth in proofe Thirdly when the Crime 6 l. 1. C. de falsâ Monetâ is very enormious as for Coyning Treason c. Fourthly 7 l. Miles §. mulier ff de adulter when a great euil fame did runne thereupon Fiftly 8 c. de Sent. excom when the Denounceour prooueth that he heard the infamie spoken of by men worthy to be credited Sixtly 9 Gl. in c. Paulum 2. q. 3. when his witnesses pretending to him they could proue the Crime doe deceiue him Lastly 10 10. And. in c. cum dilect de Elect. when he maketh halfe a good proofe as by one witnes without exception which the Ciuilians terme Semiplenam probationem For in all these Cases the praesumed and entended Calumniation grounded vpon this point onely for that the Denounceour failed in proofe doeth iustly cease But otherwise the aforesaide generall rule of condemnation in expenses c. is to be obserued Thus much then of Denunciation the most vsuall and generall inducement of a Iudges descending to Enquirie speciall against a particular person for some supposed Crime Nowe it followeth to shewe so neere as I can what course of dealing against Crimes and offences is holden both in the Court of Ecclesiasticall commission which of the two is more egerly impugned and also in ordinarie Courts Ecclesiasticall at least so farre as by Lawe is warrantable if an appellation be brought The matters handled in the Commission Ecclesiasticall are such Crimes Ecclesiasticall as are spoken of in the first treatise being aggrauated aboue the ordinarie course of them by some circumstance of moment Also these besides attaching and conuenting of Iesuites Seminarie Priestes and recusants of both sorts execution and punishment of the breache of certaine Statutes as touching her Maiesties lawfull superioritie Ecclesiasticall yeelded vnto her Highnesse by 1 7. 5. Eliz. 1. Eliz. cap. 2. 13. El. cap. 12. Parliament the Statute for vniformitie of Common prayer and the Statute to reforme certaine disorders in the Ministers of the Church punishing of Libellers slaunderous reports and disordered preaching against Persons and matters Ecclesiasticall by lawe established misdemeanours about Marriages conuenticles tending to schisme Abuse and contempt to Ministers excessiue vsuries simonies incests adulteries and other foule incontinencies subornations of periuries in matters Ecclesiasticall and such like when either by reason of the power of the delinquents or through some materiall circumstance they be not so readily and easily reformable by ordinarie iurisdiction These matters are brought thither when Ordinaries be noted of negligence in giuing redresse or when they desire aide
as by saying that he is not presented nor yet defamed of it c. but be contented to answere then the processe shall stand sound by reason of his submission vnto the proceedings But if the partie taking cause of grieuance shall appeale from such proceeding then the Ordinarie must be able before the Iudge of the appeale out of the Actes to iustifie either the fame by some presentment thereof made or by witnesses or the notorietie of the fact or else scandall found by way of enquirie or by some denunciation sufficient Indicia and euidences found afore as the law doth allowe to open a way vnto him to proceede by enquirie ex officio For otherwise the Iudge Aquo being made partie in the second instance shall be adiudged by his superiour Iudge to haue done him a grieuance to haue his proceedings therein reuersed and to pay charges to the partie appellant These be the courses of proceeding in this behalfe of both the said ecclesiasticall Courtes within this Realme which in the Treatise following for those aforesaid principall points chalenged remaine nowe to be particularly iustified and shall hereafter if neede require be shewed to hold for lawe and equitie a more strict and exact course in many points then not onely Courtes Ecclesiasticall but euen Ciuill or as we heere speake Temporall Courtes on the other side the Sea vsually doe obserue or then by the Canon or Ciuill lawes in some respects were needefull if it were so thought expedient CHAP. VII The Ciuill and Canon lawes allowe sundry meanes to grounde a speciall Enquirie of Office against a crime besides Accusation and Presentment an answere to a supposed Rule how from Generall they descend to speciall Enquirie That besides these two either a fame or clamosa insinuatio or priuate Iudiciall Denunciation or Canonical Denunciation or Indicia or taking with the maner or other Notorietie of the fact or Appeachment by some of the Cōplices or collusion of the Accuser or the not obiecting in due time that euery of these do wāt or when the Enquirie tendeth but to a spiritual punishment may seuerally any of them serue to warrant such Enquirie with some obseruations touching the nature of most of these THe publike Iudiciall denunciation which is made and preferred vp by speciall Officers assigned for that purpose in vsuall speache we terme presentment and is that presentment which must needes be meant by the autors of the first opinion that is to be handled in this second part which is this viz. that an ecclesiasticall Court may not proceede against any crime without an Accusation or presentment And it falleth in now very aptly to be treated of in this place But if it should be said that vnder the worde presentment any denunciation whatsoeuer were vnderstood by the authors of that opinion besides that it is neuer so generally taken the practice of ecclesiastical iurisdiction also would not then hereby be restrained which that opinion especially shooteth at but rather much more enlarged then they would be willing vnto And yet though it were so generally to be vnderstood neuerthelesse this opinion could not be truely defended as shall here be made manifest God willing It is shewed before that Accusation and Presentment be courses of proceeding most properly and peculiarly incident to Courtes guided either by the Ciuill or by ecclesiasticall lawes So that we finde the authors of this opinion herein to deale somewhat more liberally then certaine doe in other points in that these doe hereby allow vnto an ecclesiasticall Court some course of proceeding according to the lawe ecclesiasticall I mind first to impugne this opinion by shewing out of those two lawes that a Iudge may haue Conisance against crimes not onely vpon the prosecution of some partie which is none Accuser but also of Office by way of speciall enquirie though no such solemne presentment be preferred vp by Officers purposely thereunto appointed and therefore that sundry proceedings are warranted against crimes without Accusation or presentment It hath bin shewed afore that 1 l. libellorum ff de accus l. 5. C. de his qui accusare non possunt vnto euery Accusatiō an Inscriptiō of the Accuser to endure poenam talionis in case he proue not his intention is necessarily required But the proceeding to the conisance of a crime by way of Exceptiō repulsiue only or both Repulsiue Recriminatiue against the Accuser is done by a partie that is not to vse such Inscription And therfore some proceeding may be against crimes by a partie that is none Accuser The like is truely to be said of both the sortes of Iudiciall Querelae or complaints mentioned also in the sixth Chapter of this second part Furthermore at the Ciuill lawe both Delatours of concealements or intrusions and Delatours also vpon pecuniarie penall lawes doe omit such Inscription and therefore are none Accusers For if we will affirme the proceeding vpon their prosecution to be at the instance of a partie then doth it follow hereupon that some may be a partie in preferring offences faultes which is none Accuser But if we will call it proceeding of Office yet is it still without any presentment by officers specially thereunto appointed And therefore it followeth that the lawe Ciuill admitteth some prosecution of offences without either Accusation or Presentment The same may be affirmed of Prosecutours or parties at the law ecclesiasticall prosecuting either exofficio promoto vel mixto For there is neither Inscription to make them Accusers nor presentment by officers thereunto assigned Perhaps here by praeoccupation that Rule wil be obiected by some whereby is said that No man is to be condemned without an Accusour Which doth encounter both that which is to be spoken by me against this opinion and also for and in behalfe of all this proceeding of Office and also doth ouerthrowe the opinion it selfe that we haue nowe in handling For presentment which is one of the courses allowed by this opinion hath none vse in an Accusation but onely openeth a way to the Iudges Office for speciall enquirie against him that is presented So that if by such Rule no prosecution might be against crimes otherwise then by Accusation then all presentments which be preparatories to proceeding of Office must wholy cease For clearing of which doubt I answere that if this were a Rule as is pretended yet like as all other Rules it hath many limitations or excepted Cases But 1 Duaren disput anniuer li. 1. c. 38. a great learned Ciuilian of late times teacheth vs that no such Rule can be gathered out of any lawe and therefore was through mistaking framed but by the common sort of Interpretours onely The wordes of law whence it is pretended to be gathered be these 2 l. Rescrip § si quis ff de munerib honor If a man haue none Accuser let him not bee debarred from Offices of credite and honour Nowe it is not hereby forbidden to condemne
cause Fames be of two seuerall degrees The one rising 6 c. Sanctum dist 4. de con secrat vpon suspicion onely and from an vncerteine authour and this is not of force to make such proofe that by reason thereof 7 c. Cum in iuuentute de purg Can. l. Decuriones C. de poenis the fault should be straight way beleeued albeit such fame be coadiuuant vnto other proofes And it worketh a presumption onely against the partie 8 c. Tua nos de cohab cler mulier seruing to put him vnto his purgation The second degree in Fame is when it sprung vp and had his originall from a certeine and likely presumption and from probable matter In which case it may of it selfe make proofe either in a fact done long agone as to prooue by Fame that a man is dead or of a fact that 9 D D. in l. Siquidem C. de adulter cannot easily by direct proofs be conuinced but presumptiuely as the very fact of adulterie For a fame with probable presumption growing vpon some knowen acte comming neere vnto such a crime doth make proofe of the very fact so that the ende of the prosecution be not of verie 10 L. vbi adhuc C. de iure dot great preiudice as for example It may serue for proofe of adulterie to the effect of debarring a womans cohabitation or maintenance from her husband but not 1 D D. in c. Veniens de testio that she may be punished by death where that penaltie is the Ordinarie punishment of that crime A fame may then be sayde to be blowen abroad not onely 2 c. inquisitionis in fin de Accus when the greater part of the whole neighbour-hood or towne doe speake thereof as occasion is offered but also in case the fact be of that nature that 3 Panor in c. cū oporteat de Accus it is restrained but vnto certeine persons which by likelyhood may know of it then is it a sufficient fame though none besides the greater part of such certeine persons doe speake thereof If it be bruited among some few onely and not by the greater part of such then is it 4 c. super co de co qui cognouit consang vxor properly to be termed a Rumor and no Fame Now whensoeuer a fame touching some offence runneth against any person the Iudge may thereupon ground his Enquirie For it is the common opinion of writers 5 Card. A'exan in c. de Accus col 14. in those lawes that Fame doth succeed in place of an Accusation One reason hereof is because the very people among whom fame flieth do seeme in some sort thereby to preferre matter vp against a person so infamed which ought to be as sufficient to excite the Iudge knowing of it to doe his Office as if one certeine person or moe did present it vnto him For by fame alone 6 Alph. Villag li. 3. c. 6 conc 3. an offence is sayd to be made knowen vnto a Iudge though not thereby to conuince the partie yet to the entent of Enquirie and of descending to a triall by that occasion And as was afore alleged 7 Petr. de Palud in 4. Sent. 19. q 4. a man vpon fame alone may be said publikly detected of a crime Some Diuines for the times they liued in most excellently learned could say 8 Thom. 2. 2. that a publike fame concerning any crime doth stand in stead of an accusation and thereunto doe applie that of Genesis where the bloud of Abell is sayd to crie out against Cain when he had secretly murthered him What hast thou done sayd God to Cain 9 Gen. 4. V. 10. The voice of thy brothers bloud cryeth vnto me from the earth as if that crie of the bloud did occasion the Lord to enter vnto the examination of the impeached person Therefore doth God though he knew all things say vnto Cain What hast thou done If Fame be very brimme and rife 10 Panor c. Tertio loco de probat c. Tua nos de appellat then is it none in iustice for a Iudge though he be but an Ordinarie from whom an Appellation doth lie to omit to make any proofe Iudicially in actes of such fame before hee proceed Albeit if an Appellation bee brought he must then be able to prooue that there was in trueth such a fame before he proceeded But if the fame be not so strong and vehement then it is expedient for such a Iudge to haue the fame being not presented to be in Actes first Iudiciallie prooued by deposition of two witnesses at least For 1 Clarus vbi supra q. 6. so many will suffice to prooue a fame though they be none Officers thereunto assigned But two alone where a greater number is cannot make a fame But when the prince or such magistrates from whom none Appellation lieth doe proceed vpon a fame not presented whether it be verie brimme and vehement or otherwise yet in them it is not requisite to be prooued in Acts 2 Panor in c. cum oporteat de accusationib that there was such fame precedent because it is sufficient to bee so vpon information made knowen vnto them extraiudiciallie For the law presumeth more stronglie for their integrities and freedome from Calumniation Conspiracie and wilfull vniust vexation then of euerie inferiour ordinarie Iudges That Rule which is set downe by Interpreters that A fame ought to appeare or be prooued before a Iudge doe proceed when as there is no Presentment is subiect to diuers exceptions in lawe For first it hath 3 Felyn in c. Qualiter el. 2. de accusat Clar. q. 6. no place in the crime of heresie wherein by the common opinion of writers a vehement suspicion grounded vpon any credible relation doeth suffice to begin a speciall enquirie Secondly that Rule faileth 4 Bald. in l. Nullus nu 1. C. ad l. Iul. Maiest Innoc. in c. cū oporteat nu 5. de accusat when special enquiries be framed either by commandement or by knowledge of the prince himselfe so such commission be obtained motuproprio for the princes own seruice but not at the instance of any partie particularlie interessed therein and such is the Commission ecclesiasticall Thirdly it holdeth not 5 Abbas in c. 1. de offi Ordinar when such enquirie is made not to the end of punishing corporallie but of reforming the partie spiritually for his soules health Fourthly fame is not required 6 Innoc. in c. Qualiter el. 2. de accusat where the enquirie is neither made for any punishment corporall or spirituall but onely to the end to find out whether he that is presented or elected to an ecclesiastical function be worthie thereof or not For in such case to the end of keeping backe an vnwoorthie person the superiour without either fame or other inducement ought to enquire of meere office very
carefully touching him But it is otherwise when enquirie touching a fault is instituted against one that is already admitted into that function whether the proceeding be then for his remoouing or for other punishment On the contrary side it is receiued by the lawe Canon that albeit an euil fame yea 1 Panor in c. qualiter el. 2. de accus though it be not scandalous and offensiue be sufficient to ground enquirie against a priuate or commoÌ„ person yet euery fame except it be also scandalous will not suffice so to proceed against a Prelate The whole course by lawe prescribed touching infamie or euill fame going afore a speciall enquirie in other 2 Clarus vbi supra q. 6. Alphons Villag passim realmes abroad euen where the Ciuill and Canon lawes haue place is long since quite growen in disuse and left vnpractised in both courts not onely in those excepted but in all other cases also besides as by sundry writers of those countries is testified Neuerthelesse in the courtes Ciuill and Ecclesiasticall within this Realme this kind of proceeding vpon an Infamie according to the very prescript forme of those lawes is still required to be practised and obserued So that by this discourse how fame doeth open a way to enquirie may appeare the vntrue and iniurious Calumniations of those men who being led by ignorance or some worse matter doe buzze abroad that Ordinaries may make a fame when and how often themselues list But if they could to what purpose should they be so vniustly minded hauing by lawe so many sundry other sufficient inducements besides fame to ground their speciall enquiries vpon as partly haue bene and partly yet remaine to be here opened For another a second means besides presentmeÌ„t which doeth also opeÌ„ way vnto speciall enquirie is Clamosa insinuatio being not very vnlike to a fame yet not the same And it is 3 c. qualiter el. 2. de accus c. licet Heli. de Simonia when as a Iudge stirred vp by sundry frequent reports of credible persons yet without their depositions doeth descend to speciall enquirie euen without any preferrer or prosecuter And this is to be done by him wheÌ„ as without scandale and offence it cannot be dissembled or winked at For in this case not only the iudge may but also he ought to proceed vnto enquirie of his meere office against him which is so detected and scandalous A third means of grounding speciall enquirie besides presentment is CoÌ„plaint made either by priuate Iudiciall or by Canonicall denunciation For if such be made yea though no fame doeth appeare the Iudge is bound 1 Bald. in l. Mancipia C. de seru. fugit nu 1. to frame enquirie of Office against the partie denounced or els he is to be punished no lesse then he is to be when publike denunciation or presentment is made by officers 2 Bald. in l. inuenimus C. de probat if he shall not proceed thereupon But the priuate Iudiciall and generall Canonicall denunciation doe herein differ from publike denunciation because after publike presentment 3 Pract. Conradi fol. 236. nu 21. bee made to the Iudge the Prosecuters are not bound to deale any further therein but doe leaue it to the Iudges meere Office whereas in the other two denunciations last mentioned the Denouncer doeth prosecute and sollicite the office 4 Clarus ibid. q. 7. This denunciation commeth in place of a publike fame and thereby openeth a way to enquirie And by Custome 5 Alberic in l. ea quidem c. de accus nu 9. now generally receiued in other countries any man is admitted in this sort to denounce an offender no lesse then those which be officers specially deputed The maner of preferring denunciations in the partes on the other side is in effect thus Hee that denounceth 6 Angel de Maleficijs doeth make knowen to the Iudge in Acts that at such a time by such a man this or that misdemeanor was committed and that N. and A. c. are more sufficientlic informed in the particulars of that matter In preferring vp Presentments it is to be obserued 7 Clarus ibid. q. 12. that if the crime be done by committing any thing the place must bee expressed but if by omitting then the setting downe of the place is not required of necessitie Here perhaps some will obiect against this all other means of opening a way to speciall enquirie besides fame sundry speeches of writers in both these lawes whereby they doe seeme to require that a fame necessarilie goe before euery such enquirie But we are taught 8 Bossius tit de Inquisit nu 27. how they ought to be vnderstood that in all such places they do but speake thereof as of one especial and principall means not excluding all other and therefore must be thus takeÌ„ that by law a fame is but theÌ„ necessarily required wheÌ„ there is neither denunciatioÌ„ coÌ„plaint nor any other means besides y t be allowed to be sufficieÌ„t whereupoÌ„ to grouÌ„d a special enquirie A fourth means besides Presentment whereupoÌ„ a special enquirie may be entred vnto are Indicia so called ab Indicando which according as y e english word w t vs is coÌ„monly vsed I do interprete Euidences or certaine markes and tokens For when other inducements thereunto doe want these may serue that turne In which respect it is sayd 1 Bartol in l. congruit ff de offic praes that Indicium sufficiens aequiparatur Famâ—… a sufficient euidence or signe is aequiualent vnto a Fame Like as on the contrarie side when such euidence cannot bee had a Fame may serue in stead thereof Therfore in forreine parts where the course of hauing a Fame to go before Enquirie speciall is by custome disused yet neuerthelesse if no sufficient Indicia or euideÌ„ces for the matter doe appeare 2 Alphon. Villag lib. 3. c. 15. conclu 8. euen in those countries it is still required that at least a Fame do run thereof So that these and all the rest of the meanes that open a way vnto speciall enquiries are like the Physitians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. things that may serue to be vsed one of them instead of another that wanteth These Indicia be in lawe taken two seuerall wayes either in a more large acception as when they signifie such presumptions which be expreslie set downe in law to make a full proofe 3 Arg. l. Indicia 19. C. de rei vindicatione so that no proofes may be made to the contrary commonly called praesumptio iuris de iure or els they be of a more strict and proper acception importing some signe of a crime or other matter 4 l. Solent ff de Praescript which may serue to the finding out of Trueth And this sorte of Indicia are to be considered in three 5 Clarus §. fin q. 20. seuerall degrees The first are called Leuia
S. C. Turpillian Notorium or as others read it in the feminine gender Notoria which is a relation or a presentment vnto a Iudge of some crime And so it is taken in those words of the Ciuil law 3 l. ea quidem C. de accusat Nuntiatores notorijs suis assistere iubentur Presenters viz. voluntarie relatours and not Officers thereunto specially appointed except their Calumniation be manifest and apparant as the best writers doe interpret must make good and iustifie that which they present And againe 4 Vide August epist. 150. 160. Trebel Pol. in Claudio Verùm si falsis necne Notorijs insimulatus sit perpenso iudicio dispici debet Now the second of these two Notoria doeth open sufficient way to special Enquirie but the first 5 Clarus ibid. qu. 9. serueth not onely hereunto but euen to the conuiction also of such Notorious offender Yet before the party may vpon such Notorietie be pronounced conuicted it is required 6 Pract. Conrad fol. 240. that this Notorietie be made to appeare iudicially in Actes vnto the Iudge vnto the speeding whereof the Defendant also must be called and not onely by extraiudiciall information brought vnto him Vpon which Iudiciall 7 Ferret Cons. 31. nu 5. 35. proceeding had the Iudge before he proceede to sentence of condemnation must by interlocutorie decree pronounce such a fact to be notorious A seuenth meanes seruing to produce first Enquirie in Processu informatiuo and after in punitiuo is that which is called incidens cognitio when vpon examination of one offendour it falleth out another of his complices to be discouered For thereupon as it is the common opinion 8 Lud. Rom. in l. si certus ff ad S. C. Syllan of writers the Iudge may ground his further enquirie and taking of Informations albeit the supposed offendour 9 Bart. in l. 2. ff de adult § si publico be not at first cited thereunto But this appeachment made by him that is partaker in a crime is not to be holden so good as the saying of a witnesse 10 Clarus ibid. q. 21. but as of a bare Relatour which yet may giue iust occasion vnto the Iudge to enter into further Enquirie thereof by taking Informations as the saying of any other meane or bad person also might in like case An eight meanes to open way and to occasion the Iudges speciall enquirie in processu punitiuo is Enormitas criminis the great heinousnesse of some crime For it is holden 1 Arg. l. Si quis in hoc C. de Epis. Clericis Bart. in l. 2. ff ad l. Iul. de adulterijs that euen in strict termes of law against such a grieuous crime a Iudge hath power so to proceede yea without any fame or Indicia viz. Euidences iudicially proued and set downe in the Actes of the Court afore Ninthly the Iudge may lawfully descend to speciall enquirie of office if he shal perceiue the Accuser 2 Alph. Villag li. 3. c. 17. concl 18. to collude with the accused or to goe about to transact by secret cōposition to shut vp the matter betwixt them So if he which is supposed to be robbed 3 Bart. in l. inter omnes § rectè ff de furtis will collude with the theefe and say that he was not robbed yet if there be likelihood to the contrary he is not to be beleeued but the Iudge therevpon is to make speciall enquirie Quia interest reipub puniri furtum A tenth meanes besides presentment or any of the former which may iustifie a Iudges proceeding in this behalfe is when it is growen so farre without 4 gl in c. 1. de elect c. 2. de accus in 6. the defendants alledging that none infamie or any of the former meanes lieth against him as that it is come to some act vsually spedde post litis contestationem that is after issue ioyned For then by the common 5 Aretin in c. Qualiter cl 〈◊〉 de accusat Foller Pract. cri fol. 102. opinion of writers in lawe it shal be too late for the defendant to obiect the want of fame and of other Inducements c. So that the proceeding for want of the defendants reclaiming in time shall stand sound and shall not be auoyded hereupon for nullitie or any errour The last occasion of a Iudges iustifiable proceeding by enquirie against an offendour without any of the former inducements hitherto spoken of is when his proceeding 6 Alph. li. 10. concl 5. tendeth to a fatherly and spirituall correction for the soules health onely and not vnto any publike corporall and exemplarie punishment So that vpon all which hath bin spoken in this behalfe we may conclude in the very contradictorie of this opinion That a Courte ecclesiasticall by the lawes both Ciuill and Canon may many wayes proceede against an offendour without either Accusation or Presentment CHAP. VIII That to proceede sometimes against an offence otherwise then vpon an Accusation or Presētment or then vpon an Appeale or Enditement which two at the common lawe haue respectiue correspondence vnto the two former is no diuerse much lesse any Contrarie or repugnant course to the lawes statutes and customes of this Realme This is proued by common lawe statutes and practice in proceeding informatiue and punitiue with answeres to certaine obiections made to the contrary SEeing then that not only by Canon but also by the Ciuill lawes within the compasse of which two learnings Accusation and Presentment doe properly fall there be so many other meanes besides either of them to open way to a Iudges proceeding against a crime let it now be considered why an ecclesiastical court may not be allowed an ecclesiasticall course of proceeding or whether by the statutes or cōmon law of this Realme an ecclesiastical Iudge be any way restrained and prohibited to proceede vpō any other groundes besides the one of them two For if the Common or statute Lawe prohibite this then are such Canons c thereby in trueth reuersed and voyd as contrary and repugnant to the Lawes and statutes of this land But if no such contrarietie repugnancie or prohibition shall be found then will there be no cause why the proceedings of Iudges ecclesiastical against Crimes may not in this behalfe stil continue as in all times by-past they haue done Notwithstāding there be great diuersities in proceedings ecclesiastical frō proceedings at the Cōmon law as in the frame of the Libel in the answering of it in the ioyning of issue in the production examination publication of witnesses in exceptions or chalenges against them Corroboratories of them in the giuing of sentence or Iudgement in writing and in very many other points besides too long here to be rehearsed yet such diuersitie alone notwithstāding so that the Cōmon law or statute do neither contrary nor contradict them those proceedings shal be neuerthelesse iustifiable For by
the apprehension of the parties their examinations personall and the taking of informations from others against them is founded but also as often falleth out other penalties and disgraces be inflicted as binding to the Peace or to their good behauiour making them to answere enditements of Barattarie or such like imprisonment of them by a good space sometimes till the next Sessions or generall Assises and sometime extending discretion euen to condemne men to be whipped publickely vpon the single Denunciation of a woman being infamous and partie in the pretended Crime one who is as easie to be suborned to speake and charge a man falsely as to deale lewdly and whose testimonie though it were not singular is of no weight and credite Much lesse therefore being but one ought she to be taken for sufficient to condemne any flat contrary to Gods owne Morall Lawe I haue also knowen Articles put vp against a good Minister and Preacher to haue bene reiected in respect of their insufficiencie by the Commission ecclesiasticall Yet the same Articles being preferred euen by his aduersarie but assisted with some of countenance in the Countrey haue afterwards serued to haue an Enditement found against him to be a Common Barattour yea by those and before those who perhaps might all of them be apposed to tell directly what Barattaria truely signifieth and importeth and whence it is deriued Likewise doe we not see that vpon the like grounds to some of these a man may be touched with great disgrace and discredite and that not vniustly As when some great and potent man in a Countrey against whom fewe or none there abouts dare openly deale is put out of all Commissions and publicke charge in his Countrey vpon priuate yet credible information giuen to some of the great officers of the Kingdome touching his oppression or other ill demeanour of himselfe Doe not the like grounds of Suspicion of priuate Complaint and Information exhibited vnto them iustly and sufficiently often times mooue and warrant the Lords of the Counsell to call some great malefactours into question and to deteine them till they be acquited or condemned by due triall Besides this vsuall practise doe not the very Lawes of the land allow of these and like inducements to take informations and to enquire into matters Criminall 1 10. H. 7. fol. 17. For in an Action of false imprisonment it is a good plea for the defendant to shewe the felonie and to pleade that he tooke the plaintife for suspicion of such felonie per Frowick And why then may not three or moe of the Queenes Commissioners ecclesiasticall be in reason as deepely trusted vpon their suspicions though in trueth they vse it not in this sort as some one single Iustice of Peace may be vpon his owne onely suspicion And is it not 〈◊〉 â—…ikely that they will haue as good ground of their suspicion as he hath of his and as much care of Iustice and of their owne credite In an old 1 3. Ed. x. ca. 12. statute we finde that Notoriousnes of a facte an euill name of a man yea and light suspicion also of Felonie may any of them serue to imprison a man Albeit in the two first cases such a person is by that statute appointed to endure hard and strong imprisonment yet aske whether in the originall Rolles this statute doe speake of imprisoning or else of strong and hard poenance which such be appointed to suffer that refuse to be iustified by the Common lawe of the land And as these and like inducements doe serue to ground the processe informatiue so doe they no lesse euen in Processe punitiue when the enquirie and examination is to punish the offender For if any the Iudges at Westminster or of Assises haue iust occasion of suspicion ministred of a misdemeanour to be committed by some belonging to that Court touching matters of their Courts and present iurisdiction may they not and is it not vsuall with them euen hereupon onely without any enditement or other prosecution of partie to call such supposed offender vnto examination before them to the effect of punishing him according as the qualitie of the facte shall fall out to require In the time of King Henry the seuenth it was prouided by 2 19. H. 7. ca. 14. Parliament for suppressing of Retainours That two Iustices whereof one to be of the Quorum might call all such persons as they shall thinke to be suspected of any Retaynour and them to examine of all such Retaynours by their discretion and their certificate into the K. Benche against all of them so examined and by that examination found in default to be against them as a conuiction and their certificate of any persons by that examination accused to be Retainours to be of like effect and strength against them as an Enditement By the same it was also 3 Ibidem enacted that such Iustices as afore or the Lord Chaunceller or Lord Keeper or three of the Kings Counsell attending him shoulde haue full power and auctoritte without any sute or information made or put before them or any of them to sende for by Writte Sub poena Priuie seale Warrant or otherwise by their discretion for any person so offending and the same person to examine by othe or otherwise by their discretion and to adiudge such as should bee founde guiltie by verdict confession examination proues or otherwise in the forfeitures and paines as though they were condemned after the course of the Common lawe c. So that it was thought then by the whole state of the Realme none vniust course no not in a Temporall Court for Magistrates to call some offenders into question criminall whom they did but thinke to be suspected and to condemne them without either Enditement Appeale suite or Information made By a Statute made in her Maiesties time it is enacted 1 1. Eliz. ca. 1. That if any man be in prison for supposed speaking in behalfe of forreigne Supremacie and happen not to be endited within one halfe yeere of the offence committed that then he shall be set at libertie Whereby appeareth that a man may happen to be brought into Question criminall and to be in prison also which is an Attachment and some punishment without any Enditement or Appeale precedent The statute for 2 1. Eliz. ca. 2. Uniformitie in Common prayer mentioneth three meanes of Conuiction by the course of the Temporall lawe viz. Verdict of twelue men the parties confession and the notorious euidence of the facte If then the Notorious euidence of the fact without Appeale or Enditement Verdict or Confession may at that Lawe serue for a Conuiction may it not with as good iustice and equitie serue for the same purpose at the Ecclesiastical lawe without either Accusation or Presentment If here it be said by any that though such practise of Temporall Iudges be lawfull and the Lawes and Statutes be iust in this behalfe yet perhaps the
duelie done either preciselie or by that which is aequiualent vnto them And so we may conclude that to proceed in an Ecclesiasticall Court agaynst a crime otherwise then either by Accusation or such Presentment is not contrary or repugnant vnto the lawes of the Realme but rather the like course often practised by them and thereby the Iustice equitie of such proceeding more stronglie confirmed and iustified vnto vs and the contrarie opinion quite ouerthrowen CHAP. IX The second opinion here to be treated of is that No laie person may be cited of Office in any cause but Testamentarie or Matrimoniall the drift of that opinion is against proceeding of Office in matters criminall the necessarie vse and equitie of proceeding criminallie sometimes by the Iudges office in courtes both temporall and ecclesiasticall THe very drift of the second opinion that commeth here to be disputed of is that a Iudge ecclesiasticall may not proceed at all of Office or make speciall Enquirie which is the effect produced by that cause against any crimes or offences of late persons For in debarring them frō Citing any such the very whole proceeding against them vnto which that is the introduction is thereby also debarred and by restraining their citing of Office vnto causes onely Testamentarie or Matrimoniall all dealing against Crimes without there be an Accuser is thereby taken away Which second opinion therfore quite ouerthroweth the presenting of any laie persons though criminous allowed by the generalitie of the next precedent opinion insomuch as vpon Presentments followeth proceeding of Office by Enquirie and yet both these opinions had one Author So well bee these mens conceits digested But let vs first examine what may be the colourable occasion of this second opinion ouer and aboue the impounding of all ecclesiastical proceeding vnto those two heads spoken of in the first part sauing where the partie conuented himselfe is willing Which willingnesse in the partie for rights that may be supposed to be by him deteined but especially for crimes supposed by him to bee committed can neuer with any reason be intended that it shall bee obtained at his hands considering there is so small vse of any proceeding by office but against crimes and least of all in causes Matrimoniall or Testamentarie That no laie persons then should be delt with at all for such crimes as I haue before prooued to bee of ecclesiasticall cognisance but be suffred to do them without controlment I thinke in charitie not to be their meaning It must needs then follow that it is the proceeding against crimes ex officio Iudicis viz. without an Accuser which is hereby principallie condemned as vnreasonable or vniust Therefore to prooue it reasonable I mind here somewhat further to shew the necessarie vse equitie thereof as well in the one court as in the other And to cleare it from vniustice I wil declare first that it is both practised by the temporall lawes also is by common and statute law an allowed proceeding vnto courtes ecclesiastical next that it is practised not onely by the law Canon which many would take for a sufficient disallowance of it but also by the Ciuill lawes subiect to no such exception insomuch as they are vsed by the rest of Christendome for their Common law by the grounds whereof all their customarie lawes ordinances be argued disputed And lastly that such course of proceeding was vsed is allowed by sundry exāples in holy Scripture together with answeres vnto the obiections made to the contrary as they fall fittest into each of the seuerall parts of this disputation The equitie and necessarie vse of this course to bee holden may be shewed by the partie which by lawe is supposed to be the exciter stirrer vp of a Iudge vnto it whē none other person is found that wil prosecute This partie I meane is the 1 Clarus ibid. q. 7 publike interest which the Church or Commō welth hath to haue crimes punished Interest Reip. prouinciā purgari malis hominibus ne maleficia remaneant impunita poena enim vnius terror est multorū Bonis nocet qui malis parcit Sicut est misericordia puniēs sic est crudelitas parcens w t sundry other like rules of law Canon partly afore touched Now the publike interest doth not only rest in this when some benefite is comming towards the common treasure but is chieflie shewed by procuring common tranquillitie and repose of the subiect with sinceritie of religion and integritie of conuersation And it was called by the Romanes especially after the popular state was turned into a monarchie by the name of Fiscus and may well and significantly with vs in respect of the meaning be termed the interest of the crowne dignitie royall which by all offences are sayd to be violated Therefore doe the 2 Practica Millei fol. 3. nu 31. Ciuilians of other nations say In quocunque crimine fiscus est accusator against euery crime the benefit of the Common-wealth is an accuser And another 3 Clarus ibid. q. 10. saieth that in what crime soeuer a Iudge may proceed of office there Fiscus the common benefite stands in stead of a Partie And it is testified to bee a 1 Decius consilio 170. nu 1. common rule that euen in an offence but against a priuate person principally the iudge oftentimes is of office to proceed to the inflicting of some penaltie not expreslie set downe in lawe against such an offence for so is poena extraordinaria ment in the Ciuill lawe by reason of the very interest the Common wealth hath to haue misdemeanors punished In which 2 Clarus ibid. q. 12. respect some mā that by law may not vse action yet is not forbidden implorare officium Iudicis to stirre vp the Iudge by petition to proceed for his owne office and duties sake If her Maiesties most honourable councell together and euerie one apart if the Iudges of the land if carefull and vpright gentlemen of the Commission of Peace in euery countrey of office and for their dueties sake for the most part without any so much as priuate complaint much lesse professed Accuser or Partie but perhaps vpon some generall muttering yea and sometimes without so much for a care and vpon a feare at large onely conceiued what may happen did not or should not enquire looke into and take informations of riots violences disturbances of peace conspiracies felonies murders and of other misdemeanors and outrages and so seeke further to discouer them and to punish them or bring them to Iustice might it not iustly be feared that the realme would much more abound and ouerflow in all kinde of mischiefe Would the Constables abroad Headboroughs Bursholders and such other inferior officers and ministers of themselues preferre such vp or being found out and presented by others would they effectually folow and prosecute them as appertaineth so that the magistrates need not to take
enditement or of information because there is more cause to take offence at such then at one who is called and vrged to testifie So that if there were no meanes for a Iudge Ecclesiasticall to take knowledge nor to proceed but vpon the voluntarie prosecution and accusation of some partie which is the course opposite vnto proceeding ex officio then surely many execrable offences that are most displeasing to Almightie God offensiue to the godly dangerous to mens inheritances and to the offenders owne soules health yea and some that be pernicious banes to all religion vnto professing of God and to Christianitie it selfe were like through want of discouerie and impunitie to spread themselues ouer both Church and Common-wealth in very short time before Accusers would be found Namely Atheisme Apostasie from Christianitie Heresie Idolatrie Schisme Errour in matter of Religion Sacrilege Periurie Ecelesiasticall Blasphemie Subornation of periurie aswell in matters of mariage and testament being of speciall consequence as in others Horrible swearing Polygamy or many wiues Incest Adulterie and other vncleannesse Drunkennesse excessiue Vsurie Simonie Forgeries of Ecclesiasticall seales for testimonie Vsurpation of the holy Ministerie dangerous Conuenticles vngodly libelling and such like For who are commonly made priuie to such sinnes but men of like humour and affection in whom we may not presuppose such sinceritie of conscience that for reformation of the partie delinquent they will abandon all friendship and aduenture any displeasure euen but to take a triall with their great charge and trouble howe they shall be able to make proofe of such matters against them Besides these inconueniences that otherwise would ensue there be many others all which in particularitie to rehearse would be ouer tedious As after an accusation be begun that the Iudge seeth violent presumptions against the partie conuented if the prosecutour for feare for tediousnesse for bribes or by collusion would desist were it not meet that the Iudge of office should neuerthelesse proceed by enquirie that the delinquent may reape as he hath deserued is it not meet that a Iudge should be more carefull of the publike good of the Common-weale then euery common person and if he be so in deede shall he not be allowed as good meanes to doe these good offices to his Prince and Countrey as any priuate person And shall he not be as much cherished and allowed vpon his owne care and for his dueties sake to procure the suppressing of sinne and reformation of offenders as to do it at the instigation of any priuate partie Nay is there not lesse danger of suborning corrupting or instructing of witnesses by a Iudge who hath no priuate interest to see a man punished then there is in the prosecution by a partie who for the most part doth it but of malice or vpon some other sinister respect And what if any that is in deed a friend should be 1 Ioh. Andr. in add ad Spec. tit deinquisitionib purposely framed to be an Accuser to the intent some delinquent may escape and not be called againe into perill vpon the same crime If it be saide hereunto that the penaltie of calumniation viz. poena taltonis which is to be inflicted vpon him that faileth in proofe of his accusation will take away this suspicion it may be replied that in most countries this poenatalionis is growen in disuse but chiefely this may be answered euen where that penaltie still hath place that the Accuser may make halfe a good proofe as by one vpright witnesse and 1 c 1. de elect in 6. so should both the delinquent escape punishment and himselfe also by lawe be freed from danger of the penaltie of calumniation presumed and of enduring retaliatio Besides the like equitie may also often happen when onely two sufficient witnesses can testifie of a crime for if the one of these should be driuen of necessitie to be a partie then the full proofes required in such cases were thereby cleare taken away and so the offendour should escape punishment And therefore there is both necessary vse and good equitie to warrant proceeding ex Officio in matters criminall CHAP. X. An answere to some further obiections made against the conueniencie and reasonablenesse of proceeding against crimes of Office TO crosse the necessarie practice of proceeding by Office 1 In his title of Inconueniences the Note-gatherer assigneth sundry inconueniences by him surmised to arise thereof First saith he In treason and felonie chalenge is admitted to the Accuser here none For it is in the Ordinarie to admit one to infourme and to witnesse againe in the cause wherein he was before deposed to the contrary What these last wordes viz. to the contrarie doe serue for here neither I nor perhaps the Author himselfe of the Notes can coniecture If Acouser here be taken for a witnesse as is afore shewed then I must tell him that challenges and exceptions against witnesses not onely be allowed vnto the defendant at the lawe Ciuill and Ecclesiasticall but in a farre more beneficiall manner then is receiued by vse at the Common lawe of this Realme For it is commonly said howe truely I am not to discusse that a witnesse ought not to be receiued nor deposed vpon his oathe for the prisoner as being against the Queene And if such be permitted to speake at the prisoners request as some seldome times hath bin and be not sworne thereunto what credite will the Iurie giue vnto his bare wordes nay what credite may they giue to them and saue their owne oathes who are sworne to dealc according to their Euidence which cānot be so termed except it be vpō oath vpon matter of record or vpō the parties cōfession But if he take Accuser here for him that voluntarily prosecuteth and soliciteth the office then he may remember that against such the very Cōmon lawe giueth no challenge because any man may preferre Enditements follow them for the Queene whereas the Ciuil law hath whole titles of chalenges that may be made against Accusers which lawes be also retained in those Courtes against all voluntarie preferrers to the office who are holden as parties But if the Iudge alone at the Common law cause an Enditement to be put vp may the prisoner challenge the Iudge when as he shall not challenge any common person which doth it That is true in part which he saith that in 1 Bartol in 1. Diuus ff de custod reorum enquirie of office a Iudge by the Ciuill lawe may examine him which denounced the matter as a witnesse therein Yet it is not generall in euery denounceour or preferrer vp vnto the office but onely in such as be officers specially appointed sworne for that purpose Now what wāt of equitie or what iniustice is herein seeing perhaps such knoweth the matter best was the man that infourmed his fellowes of his particular knowledge therein which made it to be presēted May not one single
man in a graund Iurie doe the like And what should hinder such a man afterward to giue also particular euidence therof at time of the triall For is there any course more vsuall then for him that preferres vp the enditement giues euidence to haue it found to be also a witnesse to giue euidence of the very felonie c. at the prisoners triall for life and death But if it were true that euery Infourmer prosecutour might be examined also as a witnesse which is very vntrue both by lawe and practice howe could this proue that which he aduoucheth viz. that no challenge against the Accuser is admitted in Courtes Ciuill and Ecclesiasticall seeing both against prosecutors and witnesses by the Ciuill Canon lawes exceptions or challenges may be taken And though it were true that this were generally allowed and were also an inconuenience shall therefore the examining of one for another when he ought not in equitie to be ouerturne all proceeding of office as vnreasonable which is the drift at which he aimeth Another of his Inconueniences hereof is that hereby a Bishop may vpon his owne suspicion supplie the place of an Infourmer a Witnesse and a Iudge That his owne suspicion alone will not serue to open way to such proceeding is shewed afore in the seuenth Chapter And howe the Bishop being Iudge should be vsed as a witnesse in the same cause wherein he is a Iudge there is no colour in al the lawe or practice that I haue knowen or can imagine Except it be in a matter done in his owne presence whiles he sits iudicially and appearing also notoriously vnto others there besides himselfe or espied onely by himselfe Now if the preiudice to the partie be not very great why the Iudge alone aswell as any cōmon person there that might happen to haue heard it or seene it may not be trusted for a sounde witnesse I for my part can see no cause Hath the Note-gatherer neuer heard of a Cut-purse espied by the Iudge himselfe sitting on the bench by him caused to be staied and being endited vpon his relation presently tried and condemned For a third inconuenience hereof hee assigneth that it is a meanes to drawe causes from the Common lawe when neither in the Citation nor Bill men shall knowe the cause why they be conuented and so are depriued of the meanes of suing a Prohibition at the Common lawe This he termeth Addere forum foro Yet enquirie by office prescribeth no such generalitie of Citation And therefore if this were true it maketh nothing against that proceeding But that a Libel doth not conteine the cause of the conuenting is a very strange and no lesse bold assertion If his meaning in this obiection be that a man cannot procure a Prohibition till he haue the copie of the Libell thereby to shewe the temporal Iudge that something is there in demaunde or prosecution that is not of ecclesiasticall Conisance then he might more plainely haue declared it And for mine owne opinion hereunto I wil agree that in most cases the law is so howsoeuer late practice be otherwise For when the ecclesiasticall Iudge denieth the copie of the Libel where he ought not to the preiudice of the partie in this respect then the statute of K. Hen. the 5. and a writ therevpon framed doth relieue him And denying copies of libels needed not to 2. Hen. 5. ca. 3. Register pag. 58. haue bin cōplained of at that time as a grieuāce if the law had bin that vpon the parties owne suggestion only without sight of the Libell the temporal Court might at pleasure award a Prohibition So that this not expressing of cause in the Citation and denying copie of the Libel is so farre from being a meanes to drawe causes from the Common law vnto those Courts that it is of it selfe sufficient to bring thither by Prohibition causes originally being of ecclesiasticall Conisance But what serueth this not expressing of the cause of conuenting if it were so for condēnation of all proceeding by Office seeing this might no lesse happen to be omitted though the prosecution were at the instance of a partie or Accuser Yet further to satisfie both him and others herein Citations in causes Criminall out of ordinarie Courtes Letters missiue and Attachements out of Commission Courtes doe all import that there be misdemeanors of ecclesiasticall Conisance to be obiected against the partie conuented Albeit to expresse al the particulars would be both ouer tedious and chargeable to the subiect and in many respectes inconuenient besides And why should this be accounted any more inconuenient or vnreasonable then writtes of sub poena out of the Starre-Chamber or Chauncerie are which conteine not so much particularitie of the matters obiected as those Citations in ecclesiasticall Courtes In the reigne of K. Hen. the 8. there were contrary writings published betwixt S. German a common lawyer and Sir Thomas More about proceeding onely against heresie ex officio mero and without any of those allowed meanes precedent which by law may open a way to such Enquirie These reasons of Sir Thomas Mores the Note-gatherer assaieth summarily to answere and I minde not to defende further then I finde them coincident with some by me vsed and not fully answered by him And the rather because hauing not Sir Th. Mores bookes in readines with me I cānot know how truely they be gathered for that proceeding of office against other crimes vpon allowed groūdes by lawe may stand sound and good though all that which Sir Thomas More defendeth in dealing against heresie without Presentment fame c especially where the penaltie is so grieuous were to be condemned for vniust and vnequall Sir Thomas More in iustification of such proceeding against heresie alledgeth the like course to be holden in ministring of temporall Iustice viz. that Iudges vpon secret information binde a man to his good abearing and awarde out a Writ to enquire De gestu fama against any man whome they please and that the Lorde Chaunceller vpon like secret information putteth men out of Commission For answere of these the Note-gatherer saith thus But they doe not without matter prooued put a man from his free-holde or in danger of life losse of goods c as Ministers be depriued and put from their freeholde By which his answere appeareth that he yeeldeth these obiections in facte to be true and the consequence cannot be denied For if the same course be iust and reasonable in them why should it be vnreasonable in others As for the grieuousnesse of the penaltie surmised to be in the one greater then in y e other this is not material to make it of iust vniust For Magis minus non variant speciem more or lesse makes not things to be of diuers kindes And what will he say then against that Criminall proceeding of Office where neither life free-holde nor goods is called into question Shall that then in his
of sir Th. Mores grounded also vpon resemblance of the practise at the Common law vnto the ecclesiasticall in this behalfe viz. that a man may be at that law arrested and imprisoned onely vpō suspicion he frameth two answers The first of them is that at the common law there must be a fact precedent whereby a cause of suspicion must be grounded otherwise there lieth an actiō of false imprisonmēt What If an offence appeare to be done shal this be sufficient without all peril to ground a suspicion against any man whomsoeuer that it was he which did it so to imprison him Neither yet is it generall that a fact must be precedent before a man be arrested For if it be a fact of such qualitie nature as leaueth traces signes after it as murder Coining and such like which be called by Ciuilians facta permanentia in thē it is true that a fact must be precedent But in such facts as leaue no such traces behind them so y t it is not certain whether they be cōmitted at all or not yet probabilities thereof doe appeare as of speaches secret treaties of cōspiracie treason for such facts a suspected partie may be arrested and imprisoned though it be not assuredly knowen whether the fact be committed at all or not And these are called facta transeuntia Neuerthelesse this is not in any sort an answere vnto sir Th. Mores reason For admit that a fact must alwayes be precedent neuer the later this remaineth true that a Iustices onely suspicion may serue to arrest and imprison a man And yet the law ecclesiasticall for which More reasoneth doth in trueth require strōger grounds for enquitie special thē the Iudges only suspiciō as is afore at large in this secōd part declared The Note-gatherers later answere vnto that reason of Mores is that a felonie or murder being done and a fact manifest the partie apprehended and suspected knoweth that he is to answere that facte and not other by-wayes as is vsed in the ecclesiasticall proceedings Trulie of all that euer I heard these answeres be by-wayes and besides all way too of any reasonable answering obiections It may be that the partie himselfe especiallie if he be not guiltie knoweth not till hee be asked the very particular cause of his apprehension But it will be sayd that vpon his examination hee learneth what it is Why sir and so doe all that be conuented in courtes ecclesiasticall know by their examination the matter obiected Then where is the difference and the by-way that this man so talketh of But will you see his clerkelie vayne of reasoning herein For it is as if he had gathered it thus viz. A man arrested knoweth that he is to answere a fact which is committed Ergo Albeit at the common lawe a man may bee arrested vpon suspicion yet proceeding ex Officio is vnlawfull how good grounds soeuer there be for it farre sounder then suspicion For another inconuenience of proceeding by office importing with all a Contrarietie to the lawes of the Realme the Note-gatherer assigneth that thereby the Accessarie may be punished and the principall may escape which is contrarie to the Common law The consequence hereof he goeth about to prooue thus For that as he saieth the Principall may in those courtes be an Informer and a witnesse both against the Accessarie By which saying his slender skill or experience in those lawes appeareth For it is most notorious that there is no better nor more vsuall chalenge exception against an Informer or witnesse then to alleage quod est particeps vel socius criminis praetensi Albeit euen at the Common lawe we vsually see partakers and complices in coining in other kindes of treason and for sundry hainous crimes especially which are secretly contriued to be admitted to appeach and to be witnesses and to giue euidence against others their partners He affirmeth also but maketh no shew of proofe thereof that hereby the two Iurisdictions be confounded and that proceeding of office is derogatorie to the lawes liberties and customes of England In which respect it is sufficient that these be as easilie by vs denied as they be barelie boldly and vntruly by him auouched He further allegeth in three places as if it were a matter very considerable out of Hall and the Actes and Monuments of the Church that by the statute of 25. H. 8. cap. 14. all proceeding of Office is repealed and calleth the statute against Heresie 1. H. 4. the statute ex officio as if it had bene vnknowen before First that very statute 1 1. Eliz. cap. 1. it selfe of H. 8. standeth repealed Secondly it is very vntrue that it did at any time repeale proceeding of Office For it doth not so much as once mention it And therefore what any writers do name the sayd statute of H. 4. thereby repealed as I haue not sought so is it not materiall seeing they misunderstand it if they so write Yea the Notegatherer himselfe yeeldeth that the sayd statute of K. H. 8. doth establish proceeding of Office if he vnderstand what himselfe writeth For it doth appoint and so he allegeth it that from thenceforth proceedings against Heretikes should be vpon accusation or presentment If vpon Presentment then of consequence by the Iudges Office For so all lawes testifie and Presenters be not Accusers or parties For they are seuered counter-diuided euen in that very place one against the other The principall drift of that statute of K. H. 8. was to prouide that an Ordinarie vpon his owne onely suspicion should not call men into the dangerous question of heresie as it seemeth was afore vsed by some of them vpon colour of that statute 1. H. 4. and therefore there repealed The next statute which to the same purpose he quoteth 2 31. H. 8. ca. 14. is so farre from impugning proceeding of Office that for grounding proceeding ecclesiasticall euen in the crime of heresie it prouideth besides Accusation and Presentment not onely information by two witnesses but also enquirie and that is alwayes of Office But do not these men draw neere the lees when they are driuen thus to allege the statute of Sixe Articles being also repealed against proceeding of Office I had thought their courage in the pretended cause of sinceritie had bene so great that they would rather haue quit the place with losse of their cause then once to haue borrowed so much as the shadow of a weapon out of that store house Against this course the Note-gatherer also allegeth certeine bookes printed in king Henrie the eights dayes Cum priuilegio These hee termeth to be the maner of debating that cause in those dayes The first was made by S. German as it is thought and is intituled The diuision of the Spiritualtie and Temporaltie with his replie against Sir Thomas Moore intituled Salem and Bizance The next concerning the power of the cleargie and lawes of the Realme The third intituled Of
the liberties of the clergie collected out of the lawes of the Realme by Iohn Goodall and printed by Robert Wier but without priuilege And the last Marsilij Patauini Defensor Pacis in English with the Kinges and her Maiesties mothers armes which belike hee mentioneth that they may stand in stead of priuilege But will you see what great and strong debating there was of this matter by the sayd foure bookes Truely sauing in the first of them there is not a word mentioned against proceeding of Office And in Goodalles booke by sundrie places thereof as is else-where in this Apologie alleged this kinde of proceeding is plainely auouched to be a Libertie of the Clergie giuen vnto them by the lawes of the Realme And all that is sayd in that one booke 1 Of diuision betwixt the temporaltie and spiritualtie cap. 7. and one onely place thereof is no more but thus worde by worde viz. Another cause of diuision for that diuers suites haue bene taken ex officio so that the parties haue not knowen who haue accused them and thereupon they haue bene caused to abiure in cause of heresie sometime to doe penance and to pay great summes of money for redeeming Which vexation they thought came by the Iudges and the Officers Therefore the fault that hee then found was not the very proceeding of Office but for that it was handled in such sort that the partie knew not who gaue the information which he calleth Accusing and for that it was in cause of heresie being a crime of farre more important danger to the partie then any other offence Ecclesiasticall yet not challenging the very proceeding thereby for vnlawfull but as being with such circumstances some cause of diuision betweene the two states as he surmised The soundnesse of which iudgement I minde not here to examine The Note-gatherer vrgeth further that the Popish bishops were depriued in king Edward the sixt his time by Accusation or Presentment though as it seemeth hee knoweth not by whether of them But what if they at that time had bene proceeded with otherwise then of Office Woulde this prooue all proceeding of Office to be contrarie to the lawes of England which is his drift and purpose Yet I haue often shewed afore that Presentment is a preparatorie course peculiar onely to proceeding by speciall enquirie of office But for plaine proofe in fact that they were in deed proceeded with ex officio Iudicum I referre me to the actes iudiciall of their depriuation yet remaning and to that also which I haue written in a certeine chapter of the third part of this booke Heere it will not be vnseasonable to admonish the Reader once for all of a palpable 1 Aduertisement of an errour mistaking both of the Note-gatherer and Treatisour in a materiall point who by the whole course of their writings and titles of their bookes seeme to imagine proceeding ex Officio to signifie nothing els then ministring of an oath to the suspected partie in a cause criminall Whereas in verie trueth there may be some proceeding of Office though that oath be not at all vrged or vsed yea and where it ought not to be imposed though it were vrged Like as on the contrarie side there may be proceeding euen by way of Accusation where the oath may and ought to be exacted for the parties purgation perhappes burthened by great probabilities yet not being so pregnant as to conuict him And therefore without all colour of reason and ignorantlie doe they and some others as the late Petitioner to her Maiestie confound proceeding of Office with ministring of an oath being but one Act thereof which is in deed sometimes but not alwayes no nor yet alonely vsed in that course of proceeding Neuerthelesse taking it whether way they lust the sayd Popish bishops were in trueth proceeded with of Office though denounced by certeine and as is expreslie set downe of some of them were vrged and did answere the Articles obiected vpon their corporall oathes which by lawe they needed not and therefore as it is likely would not haue done if the Denunciatours had beene parties To prooue this course to be against law he allegeth also out of a booke made 2 Defence of Priests marriages pag. 175. by D. Parker sometime Archbishop of Canterbury these words viz. The very front of her Graces articles meaning Queene Marie chargeth the ecclesiasticall Ordinaries to put in execution the Canons and Ecclesiasticall lawes none other but such as were vsed in the time of king Henrie the eight And commandeth also moreouer that those should no further be put in execution but as they may stand with the lawes and statutes of the land What then Ergo all proceeding of Office though continuallie practiced in sundrie matters in both their reignes without contradiction is contrarie to the Lawes of the Realme Truely if there be one methode of sound reasoning as Ramus holdeth concerning teaching of Artes I would be sorie this kinde of disputing should be it For I haue not bene taught nor shall euer learne I thinke either to reason thus or to put such Enthymemata into true Syllogismes viz. Such Canons onely were then to be put in execution as might stand with the lawes of the Realme Ergo proceeding of Office is contrarie to the lawes of the Realme His last allegation falling into this place to be discussed that he bringeth in maymed also to prooue this proceeding to be against the lawes of England is out of one of her Maiesties Iniunctions 1 Iniunction 50. Against slanderous and infamous wordes which is thus verbatim viz. Her Maiestie straitly commandeth all maner her subiects to forbeare all vaine and contentious disputations in matters of religion and not to vse in despight or rebuke of any person these conuicious wordes Papist or Papisticall heretike Schismatike or Sacramentarie or any such like wordes of reproch But if any maner of person shall deserue the accusation of any such that first he be charitablie admonished thereof and if that shall not amend him then to denounce the offender to the Ordinarie or to some higher power hauing authoritie to correct the same But what I pray can be gathered hereof more then a care to reteine priuate persons in a charitable course one towardes another without reprochfull wordes vpon any differences of opinions Or doth this reach to the abrogating of any course of proceeding Nay rather it doeth establish it seeing vpon Denunciation which is heere mentioned proceeding of Office may be grounded but not Accusation But the Treatiser saith that heereby the same man is Iudge and Accuser which is contrary to the policy of this Realme that suffereth not an Accusor to be a witnesse nor an Enditour to be a Iuror for triall of the fact I answer that the first is vntrue For that which openeth way to the Iudges Enquirie is holden by Lawe as the Accusour and not the Iudge Touching the second I haue shewed out of
statutes that witnesses be called Accusors therefore that is not contrary to the policie of the Realme and yet is it contrary to Ciuill and Canon Lawes For the thirde if his reason a simili be good then is the Iuror as a Iudge and the Enditour as an Accusour And in deede what doe their affections differ and yet what more frequent then for an Enditour to giue in euidence vpon his othe or for one Iurour vpon his owne knowledge to get an Enditement found Therefore for a witnesse to be a kinde of Accusour and an Accusour to be a kinde of Iudge is not contrary to the policie of this Realme Hitherto in answere of allegations and obiections made against proceeding of Office and brought for proofe of some contrarietie vnto the Lawes of the Realme CHAP. XIII That the Enquirie ex Officio against Crimes is allowed both in Ciuill or Temporall Courts and in Ecclesiasticall also by the two Lawes Canon and Ciuill TO proue that the Canon and Ciuill lawes both doe allow of the course I shall not neede to stand long because so much hath by the way very often though hitherto not of purpose bene declared To alledge therefore for the former once for all it is the 1 Archid. in c. foelicis §. sin de pactis in 6. Marianus in c. qualiter quando de accus nu 108. common opinion that by the Canons Iudges Ecclesiasticall may indifferently in euery Crime being within their Iurisdiction proceede ex Officio for the common benefite And as was vpon another occasion alledged afore 2 Abb. in c. 1. de officio Ordinarii when the Enquirie is made to the purpose of correcting for the soules health and not of punishing the Iudge may proceed ex Officio though no fame were precedent And againe 3 Angel in §. fin Auth. quom oport epis when an Enquirie is made of any Crime committed against the Maiestie of God as heresie blasphemie c. the enquirie is of validitie though it be without the solemnities of place time c. By the Ciuill Lawe it is so allowed of as it is called a proceeding per Nobile Iudicis Officium In the olde Common weale of Rome what was more vsuall with their great Magistrates then habere quaestionem to make speciall enquiries and trials of supposed offenders one 1 Liuius lib. 39. or two in steade of many may suffice L. Posthumius the Praetour had Tarentum assigned vnto him for his Prouince and there he made seuere Inquisition against such Shepheards that had conspired and lincked themselues together and made all High wayes and Commons by their robberies most dangerous to be passed Of which sort of persons hee thereupon condemned seuen thousand Those Magistrates that 2 L. 12. ff de peric rei vend l. 14 ff locati l. 12. ff de decurion bus were called Aediles had authoritie by their Office vpon a summary knowledge had of the cause such as is vsed in Pie-powder Courts here to breake all vnlawfull measures to ouerthrowe destroy and marre false and corrupted wares and to punish those that offered them to sale yea and sometimes also to beate with roddes This proceeding was so well knowen to all in those times that Tertullian an auncient father of the Church doth put the Emperours to whom he writes in minde of their owne lawes whereof he there vrgeth 3 Tertullian in Apolog. ca. 2. execution If I be not deceiued saith he the Ciuill Lawes doe commaunde that malefactours be sought vp and found out and not to be concealed c. This is appointed by the decrees of the Senate by the Ordinances of Emperours and by the very Empire it selfe whose ministers you are And againe 4 Tertullian ibid. c. 4. in another place thus Nulla lex vetat discuti quod prohibet admitti Whatsoeuer any Lawe forbids to be done assuredly it permits to be sought out sifted Let vs see saith the 5 L. 3. §. Praeterea ff desuspect tutoribus Ciuill Lawe whether a Gardein of an infant that is suspected may be remooued from his Gardeinship without any accusation and it is receiued that he ought to be if by euident tokens it appeare to the Praetour that such a Tutour is to be suspected And albeit the 6 Gloss. in l. 2. §. si publico ff de adult glosse say that ordinarily by that Lawe the Iudge proceedeth not ex Officio yet by reason of the strait course holden thereby with all Accusours so that Accusation is now almost generally through the worlde growen in disuse it is therefore by 7 Gandinus de malefic tit quomodo cognos nu 6. passim alii such generall custome made lawfull in euery cause for a Iudge to proceede at the Ciuill Lawe ex Officio So that considering such 8 Bald. in l. 1. §. in initio ff de offic praesidis custome it is as ordinarie a remedy now as Accusation And some reason hereof is assigned to be this that the Lawe iudgeth euen an Accusour not to be wanting in such proceeding for that 1 Prae. Millei fol. 3. nu 31. in euery Crime Fiscus est Accusator the common interest is the Accusour and it is so farre from being a course disallowed by that Lawe that 2 Angel de malef ver haec est quaedam ibi Aug. in addit a. nu 12. vsque ad 48. albeit there were no such custome at all yet there be very many cases wherein by the very expresse disposition of that lawe the Iudge may proceede ex Officio Nay it is thus testified by a great Lawyer that 3 Io. Andr. in add Specul tit de Inquisitione §. quando autem in any case whatsoeuer euen by the Ciuill lawe it is permitted to the Iudge to proceede of Office and so by way of Enquirie And this is receiued not onely in publicke and popular misdemeanours but also in priuate offences For 4 Decius cons. 170. nu 1. quòd est communis opinio in these without either complaint or Accusation the Iudge may proceede of Office by way of Enquirie Albeit the Lawe set not downe for such any certaine either corporall or pecuniarie penaltie for then such an offendour is punishable by some extraordinary penaltie The reason of this proceeding in priuate Crimes is the very interest that the Common wealth hath to haue such offences punished By reason of which common interest 5 Bald. in l. 1. C. qui accusare non possunt euen where there is an Accuser yet if hee be away the Iudge ex Officio may proceed and go on in the cause And so it is obserued by common practise in Ciuill lawe Courts The like is to be saide when the partie wil collude with the 6 Bartolus in l. inter omnes §. rectè ff de furtis malefactour for if he that was robbed will collude with the thiefe and say hee was not
robbed yet if there be likelyhood to the contrary the partie is not beleeued but the Iudge proceedeth ex Officio quia interest Reipub. puniri furtum Touching the penaltie due vpon such proceeding some writers holde that 7 D D. in c. qualiter el. 2. de accus the ordinarie paine appointed by Lawe is not to be inflicted vpon proceeding of Office But they also make these exceptions viz. that this doth not holde 8 Innoc in d. ca. where the Crime is notorious nor 9 Card. Alexand in c. de accusat col 39. where the defendant vpon the enquirie confesseth the Crime nor by the 10 Plerique omnes D D. course of the Ciuill Lawe For in these cases they affirme that the very ordinarie paine expressed in the Law may be imposed But it is assured 11 Clarus lib. 5. § fin qu. 49. that by Custome at both these Lawes not onely a milder paine but the very set paine of Lawe it selfe may be inflicted euen when a Iudge hath proceeded of Office But here some may obiect that those Lawes do seeme sometimes to require an Accuser It is true but neither alwayes nor of necessitie as hath bene opened And it is shewed afore that publike interest stands in steede of an Accuser Likewise the 1 c. qualiter quando cl 2. de accusat Lawe accounteth fame precedent to be a kinde of Accuser And where fame wanteth other 2 Bartol in l. congruit ff de Off. praesidis presumptions and Indicia or euidences are in this behalfe equiualent vnto a fame It may further perhaps be vrged that by Ciuill lawe this Enquirie ex officio is counted an extraordinarie remedie If it were so admitted to be what would this auaile those that oppugne it simply for the rule is Vbi cessat remedium Ordinarium ibi decurritur ad extraordinarium And it is not holden nor is otherwise likely if a partie will seriously and with effect prosecute but that the Ordinarie Iudge will cease further to deale therein ex officio yet it is a little afore signified that by reason of such generall custome this Enquirie ex officio is become euen by the Ciuill Lawe to be an Ordinarie remedie And besides that custome wheresoeuer 3 Specul Marran de Inquisit nu 39. Enquirie of office is specially permitted either by Lawe as in many cases or by statute there it is as ordinarie a remedie as Accusation And by the 4 Ibid. nu 48. Canon Lawe it is absolutely an ordinarie remedie I haue also heard it to haue bene obiected against this course that bad and infamous persons suggestions haue bene accepted If it be so it is but the fault of persons not of the Lawe And if by an Appellation from any ordinarie Court this point come to hammering it wil not be found absolutely iustifiable yet experience teacheth that not onely Relatours that be infamous and bad persons be in some cases admitted by the Lawes of this Realme but which is more they are permitted also to be witnesses As both infamous persons and those that be partakers with the appeached in treasons murders and felonies which is permitted in fauour of the Prince and common wealth in detestation of such grieuous crimes and for the very nature of the crimes which are for the most part so perfourmed as none honest persons but such as themselues are or can be priuie vnto them Vpon the same grounds the Ciuil Law also admitteth the like witnesses Therefore is it testified to be 4 Decius consilio 342. nu 8. the common opinion of writers in that Law that for the horriblenes of some crimes witnesses otherwise disabled in Law may be receiued as in here sie and in Treason Also when the trueth of the matter cannot otherwise bee had therefore the rule is that when the facte is of such qualitie that other witnesses cannot by any possibilitie be had in such case those shal be admitted that are in other cases forbidden by lawe Therefore none of these nor any such like friuolous obiections will be able to ouerthrowe this course so manifoldly grounded both vpon those former seuerall lawes and also vpon reason CHAP. XIIII An answere to such obiections as vpon the Ciuill or Canon lawes are brought against all proceeding of Office in causes Criminall by the Treatisour and the Note-gatherer AGainst all that is or may be brought out of those two lawes for confirmation hereof the Treatisour rather exclaimeth then obiecteth that they are strange lawes strange and forreigne proceedings and I knowe not against what pretended strange courses he bitterly inueieth as if nothing that is vsed els-where in the world could sauour of Iustice besides our owne or might be receiued amongst vs howe apt or beneficiall soeuer it be otherwise Neuerthelesse we finde in the bookes of termes and yeeres many things reported out of the Ciuill and Canon lawes yea many rules taken out of them which are there both alledged and allowed of That sage and prudent Senate with the whole people of Rome when of twelue Tables which conteined the ground of all their lawes tenne of them were transcribed taken out of the lawes of sundry common weales then in Greece they neither helde it any disparage to their owne Nation nor in that respect accounted them the lesse to be Romane lawes Though it were graunted that the proceeding of office in Courtes Ciuil and Ecclesiasticall with vs was drawen at first from those two lawes yet the same or like proceeding which is vsed in sundry temporall Courtes here perhaps will not be iudged to haue bin taken and borrowed from those two lawes but rather to haue bin the very olde originall custome and Common lawe of the land Which consideration if it be true must needes in mine opinion make much for the approuing of the reasonablenesse and equitie of that proceeding when as seuerall nations by one instinct of the light of reason haue so long iumped hitte vpō one the same course without borrowing it the one of the other But frō whencesoeuer any of these courtes in this lād haue borrowed their proceeding of office seeing temporall Courts of the Realme haue practice of the like course those lawes do allow it also vnto Courtes ecclesiastical according to the vse euen of so many hundreths of yeeres as this Nation hath bin Christian therefore these 1 Vide preamb. stat 25. H. 8. c. 21. proceedings ought not now at length to be accounted either forreine or strange from our policy but rather as our owne homebred English lawes and her Maiesties lawes ecclesiastical as they be often termed in actes of Parliament It is true which is said out of the Ciuil law Ea nostra facimus quibus auctoritatem 2 l. 1. C. de Vet. iure emendando nostram impartimur Those things we make ours vpon which we bestowe our authoritie whether expresly or by implication vpon long continuance of
Euill in this place wickednesse or sinne is not to be vnderstoode but a punishment of sinne poenapeccati And besides these two sayings of Augustine are spoken of Priuate and not of Publike oathes Now foloweth what an Oath is but first touching the name of it in the Latin tongue wherein it is knowen by three seuerall wordes The first is Iuramentum a word deriued à Iure of Right or Lawe as a thing required by Lawe and this is of most generall vse to all kindes of Oathes The second is Iusiurandum seruing sometimes in generall for euery Oathe but most often for that which is called Decisorium which shal be touched afterwardes The third word is Sacramentum à 1 Quintil. lib. 5. ca. de iureiurando Sacrando because thereby a man doth Deuouere vowe vp and giue ouer his owne safegard and prospering vnto God if willingly and wittingly hee sweare falsly which last of the three in the Emperours dayes whose constitutions are set downe in codice Iustiniani was most of all the three in vse and so is it vsed for an Oath in all the Latin Entries at the common Law and thereof comes their French word Serement S. 2 Aug. serm 28. de verbis apostoli Mag. Sentent dist 39. Augustine saith Iurare est ius veritatis Deo reddere And againe in the same place Quid est iurare per Deum nisi testis est Deus Tullie 3 Cic. 3. Offic. defineth it thus Iusiurandum est affirmatio religiosa 4 Aristot. 18. Rhet. ad Alex. Aristotle defineth it thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an Oath is a speech voide of proofe by any demonstration other then that it is made by taking the name of God to witnesse But more fully yet briefly by 5 Azo in summa Azo Iusiurandum est affirmatio vel negatio adhibita religione It is not tyed to any forme of wordes but in this behalfe is very manifolde S. 6 Hieron in 4. Ieremiae Ierome saith where we finde in the olde Testament The Lord liueth this is an Oath And an other olde 7 Chromatius in c. 5. Matth. writer farre more generally whosoeuer saith he speaketh the trueth doth in some sort sweare because it is written A faithfull witnesse doth not speake vntruely The most generall formall cause and also finall of euery lawful othe is for a confirmation of that whereof we sweare Now the confirmation of matters within compasse of Science is made by discourse of reason proceeding vpon points known by the light of nature to be vnfallibly true But the seuerall accidentall facts and wordes of men cannot by such necessarie discourse of reason be confirmed and therefore those things that are spoken concerning such matters are for the most parte confirmed by the wordes of such as knowe them Yet a mans bare word was not thought sufficient for confirmation of that which was to be deliuered by him One cause why it is not to be thought sufficient is the want of care to deliuer a sincere trueth which most men be possessed with through corruption of our nature but rather in steed therof very vntrueths as by wicked affections we be lead Secondly humane testimonie is not alwayes sufficient by reason of want of knowledge for men can not know things that are to come nor things absent or done in distant and remote places from them Yet because there be sundry occasions to speake hereof and for that it is most requisite in the common affaires of the worlde that a certaintie euen of these matters may be knowen for manifolde occasions happening therefore it was necessary for the further credit of such as pretended to be able to speake thereof to haue recourse vnto diuine testimonie for that in God there is neither vntrueth nor any thing is hidden from him And that which is so confirmed strengthened by so much a better greater testimonie theÌ„ the bare sayings of man are must needs be intended to be more sufficiently thereby approoued vnto vs. To this effect we find it thus determined by a Councel 1 Concil Tolet. 8. ca. 2. Whatsoeuer concerneth any league of peace is then more firmly grounded when an othe doeth strengthen it Yea and eche thing that draweth mens mindes to friendship and concord doth continue more fast when they are tyed by the bondes of mutuall othes Whatsoeuer also is to bee prooued by witnesses is more surely verefied when an othe concurreth with that which is affirmed And where witnesses bee not it is the strictnes of an oath which onely can descry of what credite he is that pretendeth to be innocent and guiltlesse Therefore he that sweareth by calling God to witnesse doeth as it were vse Gods testimonie to concurre with his owne saying And it is in this regarde generally by all nations presumed that what is spoken with such inuocation of diuine testimonie may be probably and for the most part holden for trueth The very heathens by light of nature coulde discerne thus much for 2 Aristot. cap. 18. Rhet. ad Alex. Aristotle saith that no man will forsweare himselfe that feareth the punishment of God and shame amongs men considering that albeit his periurie may be hidden from men yet can it not be concealed from God And another in this sort 1 Terent in Hecyra I know nothing more sacred then an othe whereby I may approue my faith vnto other men And 2 Cic. lib. 3. Tully to like effect Our predecessours thorough the whole course of this life thought there was no straiter bonde to tie men then their othes Therefore the Ciuil lawe holdeth that 3 L. Antistius ff de acquir haâ—…ed he which sweareth doth not onely declare but confirme and establish thereby his true meaning And that law calleth it a 4 L. 1. C. de iuram calumn religious feare whereby the quarrelsome boldnes of such as contend in lawe is restrained The Canons do call it 5 c. cum contingat c. li vero de iureiutando vinculuÌ„ animae a band of the soule borrowing that speech froÌ„ Diuines 6 Demost. contra Baeotum Demosthenes saith that an oath is the greatest and grauest matter that is amongs men and as he elsewhere doth testifie 7 Idem contra Aristocr to sweare in trueth is a duetie which for the most part is to be performed of all men Aristotle hereof further saith 8 Arist. 1. metaph cap. 3. thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 most ancient is most honourable but an othe is a most worthie or honourable thing And an heathen 9 Vlpian l. 1. ff de iureiurando ciuil lawyer giueth it this elogie Iuramentum maximum expediendarum litium remedium an othe is an especiall meane for dispatch of suites Therefore the more commendable necessarie an othe is in any respect the more vglie and horrible is periurie and the violation of an othe 10 Aristot. 1. lib. Rhet.
If Iudiciall then they binde none precisely but the people and Common weale of the Iewes but if they be Morall lawes which onely remaineth and of which sort in deed they are then consequently are they of the lawe of nature and that the said prohibitions be in deed Morall lawes and of the lawe of Nature appeareth by the words of God himselfe generally testifying of them all that for such abhominable incestuous matches as be there specified and forbidden he did cast out the Cananites and other people of the land before the Israelites But they being heathens had none other lawe but the lawe of nature to take knowledge of or to binde them and therefore could not for those pollutions haue bene iustly punished if the prohibitions of them had not bene by the lawe of Nature which bindeth all men indifferently In the third case videlicet when a Promissorie oath tendeth onely to the profite and benefite of some particular person to whom such promise is made as namely an oath of a Soldiour to his Generall of a Subiect to his Prince of a Tenant to his Lord or of a bondman to his Master it is generally holden that hee to whose onely behoofe it was made may sufficiently agayne discharge it because it is intended the promise is in deed then performed vnto the superiour when it is disposed of according to his pleasure and as he liketh best of The fourth and last aforesayd sorte of oathes Promissorie is the speciall subiect wherein if in any a dispensation may properly haue place To dispense or to discharge a man from an oath taken hath two diuers significations and acceptions for it is taken either for a release of the very bonde of the oath so that the partie should no more before God bee tied thereunto or else for a sound interpretation and declaration that vpon some euent ensuing or discouered vnto vs afterward or other considerable circumstance such oath doeth not necessarily before God require a performance A Promissorie oath is made either for confirmation of some thing vnto the performance whereof wee are otherwise also bound by Gods lawe or by the lawe of nature or of such as for accomplishing whereof we are besides our oath tied by positiue lawe of man or of such as otherwise then by oath we no way stood bound to fulfill The last of these three is also of two sortes for it either concerneth matter some way tending to the seruice of God and humbling of our selues before him voluntarily by vs promised or else matter humane and ciuill onely by our oath confirmed In the first of those three last wherein besides our oath wee are bound by Gods lawe or by the lawe of nature a dispensation by way of release of the bond of the oath cannot by any humaine authoritie be giuen for else a man might hereby be set at libertie not onely to breake the law of God and nature which is eternall and immutable but to goe against his owne oath also which being Praeceptum iuris Diuini is also in that sense vndispensable Except a man should absurdly imagine as the heathen Romanes did of a water that was in Via Appia consecrated vnto Mercurie for they 1 Alex. ab Alexand Genial dier were so besotted as to thinke if a man did besprinkle his head with a Lawrell branch dipped in that water therewith calling vpon Mercurie that by such expiation hee was clearely discharged from any breach of oath and from periurie But as dispensation is taken for a sound and true interpretation of those lawes how farre they reach and where the generall wordes of them ought to cease it hath place euen in these whether they bee precepts Affirmatiue or Negatiue that rule of the Schoolemen notwithstanding videlicet Praecepta diuina negatiua obligant semper ad semper Praecepta affirmatiua licet semper tamen non ad semper For examples sake first in Precepts Negatiue conteined in Gods lawe if a man shall sweare for more precise obseruation of that commaundement Thou shalt not kill that he will neuer shed any mans bloud yet if in necessarie defence of his 2 l. vt vim ff de iust iure ibi gl DD. person or 3 Iason in d. l. qui dicit eum esse communem Diaz reg 597. goods hee shall afterward kill a thiefe the Superiour may in this case by way of such dispensation lawfully declare that hee is not hereby to bee holden guiltie of the breach of that commaundement or of his oathe Likewise if a married man who voweth and sweareth neuer to companie with any woman but his wife during their two liues shall without any negligence or default of his bee herein wickedly deceiued by another woman which is by him taken to be his owne wife it may for his satisfaction by such dispensation bee determined declared that hereby he hath neither offended against Gods lawe nor his oath In precepts affirmatiue conteined in Gods law 4 Matth. 12. v. 5. 8. Christ himself hath declared that the Priests imploied on the Saboth about the sacrifices of the Temple or those who on that day 5 Ioh. 7. vers 23. circumcised children and others 2 Matth. 12. vers 10. 12. Marc. 3. vers 4. Luc. 6. vers 9. doing on that day the necessarie workes of charitie or that 3 Luc. 13. v. 15. Luc. 14. vers 5. whereby mans life is necessarily susteined do not violate the Saboth therein If our parents to whome wee doe owe and perhappes haue also sworne honour and obedience shall command any 4 l. Lucius ff de cod Demonst. L. nepos ff de verbis signific L. silius ff de cond institut vnlawfull or dishonest thing as to betray our Prince and Country c. it is assured that in not performance hereof it may and ought to be declared neither Gods commaundement nor our oathes to be thereby violated Though a Iudge should sweare to accept euermore in iudgement of the depositions of two witnesses produced for proofe of any matter so they be not excepted against iustly by the aduerse partie according to that saying of our Sauior Christ In the mouth of two or three witnesses euery word shal be established Neuerthelesse if according to direction of mans 5 Iust. de Testam §. 1. c. relatum c. cum esses ex d. tit positiue lawe in this behalfe he shall reiect the testimony of children being but tenne or twelue yeeres of age it may and ought to be declared that herein he doth not offend against the oathe by him taken The like is true of any oath in generall because the commandement of God for performance thereof is not so 6 L. non dubium C. de legibus peremptorie that it doeth binde vs to doe any thing which is in it selfe wicked for non 7 c. non est de reg iuris in 6. est obligatorium contrabonos mores
purgationis where there be such parties is when in a cause criminally mooued by some accuser or partie the Iudge vpon defect of sufficient proofe doeth tender to the defendant an oath to cleare himselfe This though it be established by the Canon yet of long time it hath bene in vse aswell in Ciuill or Temporall courts on the other side of the Sea as in Ecclesiasticall so that if the defendant shall refuse to take it in either he is holden pro confesso conuicto The other oath of purgation or clearing simply when there is no formall partie in iudgement besides the defendant is that which by reason of fame scandall vehement presumption or vpon some other of those meanes that as I haue shewed afore doe open a way to Enquirie ex officio the Iudge doeth giue vnto the defendant to his clearing of the very crime obiected without any meaning then to seeke further proofes of that crime after the defendant hath taken such oath The other oath necessarie being partly of 2 Leuit. 5. v. 1. Num. 5. v. 12. sic deinceps Iosh. 7. v. 19. 1. Sam. 14. v. 43. clearing and partly of further enquirie is that which as is next aforesayd is giuen to the defendant vpon criminall matter obiected and vpon the circumstances thereof yea oftentimes with purpose to make further proofe in case the defendant shall not confesse it or not so fully in materiall circumstances as the Iudge hath cause to thinke may by witnesses or otherwise be prooued Yet if he shall confesse so farre as is thought may bee prooued then according to the qualitie of such his answere hee is presently either proceeded with thereupon vnto a iudgement or else dismissed as cleared thereof by his oath The examples and other iustification hereof shall more largely God willing be shewed in their proper place hereafter For this is the oath that the Innouators doe so much condemne and exclaime against But nowe touching voluntarie Iudiciall oathes whereof Suppletorium is that which is tendered to the plaintife or defendant according to the qualitie of the cause in a ciuill matter for supply of proofe made semiplenè tantùm as happily by one singular witnes being without all iuâ—…t exceâ—…tion Iuramentum in litem or Aestimatorium is then 1 L. 1. cum l. sequ ff de in litem iurando giuen by the Iudge when the defendant doeth not restore the very thing that is in demaund in which respect he is to be condemned in the value thereof according to such rate as the plaintife is endamaged taking it vpon his oath yet so as the Iudge by equitie may taxe and moderate the quantitie of the summe which he may not exceede and also when the partie hath sworne the Iudge may defalke thereof as he seeth cause in equitie Decisorium iuramentum delatum is that which 2 Exod. 22. v. 11. 1. Reg. 8. v. 31. Hebr. 6. v. 16. either the one or the other of the parties first offereth vnto his aduersarie to take according to that hee affirmeth or standeth in perhaps vpon confidence of his good conscience or for want of better proofe So that if he to whom it is so deferred shall take such oath then must the matter be adiudged according to his oath as if the parties had so agreed the cause But if he shall refuse it and yet will not referre it that is will not put it ouer vnto his oath that first made the offer then shall hee be ouerthrowen in the cause So that to referre an oath is nothing els but to offer it backe to be decided by his oath according to his owne issue that first made the offer 3 L. iusiurandum 34. § ait Praetor ff eodem l. generaliter 12. § se liuramento C. d. But if vpon such referring it ouer backe againe he also that made the first offer will not take the oath then hee that so referred it ouer againe shall haue iudgement passe with him as if he himselfe had sworne when it was first offered him for maximae turpitudinis est nec delatum subire nec referre iuramentum Examples of these decisorie oathes there be also at the common lawe for 4 19. H. 6. 43. where the defendant desires that the plaintife may be examined or sworne this is peremptorie to the plaintife in this point and so is the wager of lawe ex parte defendentis By the custome of London if the defendant desire to haue the plaintife sweare to his declaration and hee doe it the defendant is thereupon condemned But this oathe decisorie at the 5 Iul. Clarus li. 5. § finali qu. 63. ciuil Law is neuer vsed in matters criminall except they be mooued ciuilly not criminally that is for the plaintifes priuate amends and satisfaction or else the cause be but of small value or the proceeding in such criminall cause criminally be referred and intended to no corporall but to a pecuniarie punishment or fine onely Thus farre for a generall vnderstanding of the nature of euery seuerall kinde of oathe CHAP. IIII. That the ceremonies vsed in taking and giuing corporall oathes with laying handes vpon the Bible or Testament and swearing by the contents of it are not vnlawfull THe first challenge nowe comming to be spoken of that is made by some of them against the ceremonie vsed through this Realme in all corporall oathes taken either in Temporall or in Ecclesiasticall Courts is the laying of our hands vpon a booke when we take the oathe For the better approbation hereof it is meete to consider the generall ende of it the particular vse of it and the generall practise of that or of the like ceremony reported both in Scripture and in other writers to haue bene vsed in such action The generall and chiefe ende of this or of any the like ceremony vsed in this action is to signifie thereby that we do then aduisedly attend and giue heede to the oath wherewith we are charged and that we do accept of it and bind ourselues in sort as it is giuen The vse of this in particular is to strike a more aduised feare reuerence into vs when wee consider the reuerence due to an oathe as it is described in that booke the curses there threatned against those that for sweare themselues or shall take the name of God vainely This vse of such corporall ceremonie in taking of an oathe is touched in the 1 L. 3. C. si minor se maiorem dixerit ciuil law out of which it is gathered that by touching and by corporall taking of it the oath is holden to be more inuiolable and the harder vpon any plea to be recalled The practise of corporall oathes taken with some like effectuall and significant ceremonie by the godly is to be found in Scripture When 1 Gen. 24. v. 3. 9. Abraham caused his seruant that was vnder his authoritie to take a corporall Promissorie and necessarie oath for
The true issue of the next opinion in question two sortes of crimes and offences prohibited in what cases an oath here spoken of may not be ministred and the manifolde conueniencie and necessitie of an oath sometimes to be ministred in a cause criminall and penall vnto the partie with some fewe obiections touching inconueniencie thereof answered NOwe followeth the most principall chalenge by this sort of men and it is that which they make against such oath as I termed afore an oath of purgation and of Enquirie which is when a Iudge hauing some one or mo of those grounds treated of and prooued afore sufficient in equitie and lawe to ground an Enquirie ex officio against a crime doeth accordingly proceede and vrgeth the partie conuented to answere the matter and circumstances whereon the Enquirie to the ende of Purgation or els to punishment and reformation is framed vpon his corporall oath though the matter be criminall thereby may happen to be penall to him selfe and perhaps vnto others also Nowe whether such oath may by a Magistrate lawfully be vrged and therefore not to be refused by the partie is the very issue of this question Crimes and offenses are of two sortes they are either prohibita quia mala that is either mala perse in their owne nature wicked therfore by lawes forbidden or such as of their owne nature are not simply euill but therefore made euill because for some publike good ende they are forbidden by positiue lawes Whether in both these sortes of crimes those men doe thinke such oath to bee vnlawfull or but in the one of them and in whether of the two I haue not yet heard any resolution and therefore will bring my proofes indifferently for either But these two cautions you must be forewarned of First that it is not holden by any Law in England nor by practise of any Court here vsed that a man should be examined vpon his oath touching a crime whereby his life or any of his limmes may be endangered The reason why the lawes thought it vnreasonable to stretch it thus farre was for feare of periurie because it cannot be entended of most men but they will rather hazarde an vntrue oath then either their life or limmes Skinne for 1 Iob 2. V. 4. skinne sayth Satan to God and all that euer a man hath will hee giue for his life And to this very purpose is the same text not vnaptly alleaged euē by the Treatisor himself which maketh me the more to maruell at the Note-gatherer pretending to be both so great a Diuine Statesman also that he could not see this to be far the sounder opinion by diuinitie and that he knewe not the policie and custome of this Realme to concurre also therewith howsoeuer he auouche the contrary as 2 Part. 2. ca. 10. pag. 93. afore is by me noted The next caution is that if the Iudge haue probable cause to suspect the partie to be such one as will 3 Iul. Clar. lib. 5. § finali q. 45. forsweare himselfe rather then tell a trueth there he ought also to abstaine from tendring oath vnto him especially touching a crime This not onely by lawe is required but as ancient Fathers iudge by diuinitie also 1 Aug. de decoll Ioh. Bapt. ser. 11. quare sayth S. Augustine prouocasti hominem ad iurationem quem sciebas falsum esse iuraturum why didst thou prouoke such one to sweare as thou knewest would sweare falsely And 2 Aug. ibidem againe the same learned Father he that prouoketh a man to sweare whom he knoweth will sweare falsely is worse then a man killer for a man slayer killeth but the body but this man goeth about to kill the soule yea two soules that is his whome he so prouoketh and his owne soule An example hereof may be of him which knowing the very trueth yet deferreth an oath decisory whereas a Iudge though he know it not but only haue probable suspition that the partie is like wilfully to periure ought not to vrge an Oathe at his hands In the handling of this oath ministred to a partie ex officio in a cause criminall and thereby penall to him I propound this order to my selfe First to diduce downe more largely that equitie which is afore in the ninth Chapter of the second part shewed to be in the Enquirie of Office vnto this chiefe and most vsuall act in such Enquirie that is of examining the partie by his corporall oath with answere to some fewe obiections made against the equitie and reasonablenes of it by the Treatisour Next I meane to shew it to be so far from being contrary to the lawes of the Realme that by them it is often vsed and practised with answer to such reasons as be made to proue the contrarie Then that the lawes of the Realme doe allowe it in Courtes Ecclesiasticall Fourthly that it is practised and allowed by Canon and Ciuill lawes And that it is in vse amongst other nations with answere likewise to obiections made to the contrary Sixtly that it is practised and allowed in Gods lawe Lastly I will God permitting me answere their obiections that out of the worde of God and Diuinitie I haue heard made to the contrary First therfore touching the equity of such oath All enquirie of crimes is made in some of these three sortes First where neither person nor any deede is knowen to the Iudge in particular to be cōmitted And such are enquiries by grand Iuries at the common lawe and Enquiries by Churchwardens and Sidemen in visitations at the Ecclesiasticall lawe This is called Inquisitio generalis Enquirie or Enquest generall Secondly enquirie is made when a fact is knowen to bee done but the delinquent is not knowen As the Inquisition by a Coroner vpon some murder committed at the common lawe and as the Enquirie vpon forgerie committed in some act of an Ecclesiasticall court in which kinde of Enquirie the hidden person is enquired after in respect of the apparant fact Lastly Enquirie is made against a particular person where there be presumptions and detections that some certaine crime is by him committed but whether he haue committed it or not it is not certainely knowen and herein the crime being hidden is enquired of because of the person apparantly pressed by some probabilities thereof The second of these is termed also Inquisitio generalis but it is not so generall as the first and the last is most properly termed Inquisitio specialis In the first and second of these sortes of Enquiring it wil not I take it be denyed by any but that such should be assumed by the seuerall Iudges and Officers in that behalfe as they in their discretions thinke most fit and to be most likely to knowe the offendors and the offenses with their circumstances and that they be charged vpon their oathes touching their vtmost knowledge concerning such Offendors And may it not then thereby happen and fall
these sortes are Iuramentum calumniae veritatis Purgationis All these by lawe are necessarie to be taken for 1 l. 2. Authen principales C. de iuram calumniae Marr. de iuram cal nu 6. Cuiacius li. 9. obs ca. 37. if they be refused being so tendered hee is ouerthrowen in his cause that refuseth and is holden pro confesso conuicto And yet very often it falleth out that by such oathe the partie is drawen to discouer his owne dolum malum couine fraude or mal-engine and other also his owne lewdnesse both preiudiciall by lawe to his honestie and good name and also otherwise penall to himselfe For examples sake by the nature of Iuramentum calumniae hee is to discouer in some sorte euen the cogitations of his heart in that behalfe viz. 1 l. 2. C. de iuram calumniae That he standeth in lawe or affirmeth something in a full opinion and confidence that hee hath of his owne right and that the suite as hee mainteineth it seemeth to him good and iust And 2 Ibid. d. Authen principales §. i. Instit. de poena temerè litig Nou. 49. c. 3. further that what soeuer he shall be asked about that matter he shall answere it from time to time truly that he neither hath fraudulently giuen nor will after giue or promise to giue any thing to corrupt the minde of any man that hath to iudge in that cause Nowe if in a priuate cause betwixt priuate persons suing but for priuate benefite and commoditie and at one of their petitions per mercenarium Iudicis officium his aduersarie must of necessitie take such an oathe touching matters perhaps of his owne fraude and lewdnesse and to the discouering oftentimes of matters criminall and penall to himselfe or else must loose his suite and bee condemned as conuicted by his owne presumed and implied confession and this both by the Canon and Ciuill lawes being the Common lawe in both courtes of all other nations abroad in Christ endome then in a publike cause mooued by the Iudge ex nobili officio where hee seeth by his discretion and direction of lawes good cause in equitie for the publike interest that the Church and Common wealth haue that sinnes be punished and repressed for discharge of his duetie according to the trust reposed in him and not of malice or to pull any priuate benefite from the partie how much more is it herein equal and necessarie that an oath be ministred to such presumed delinquent for the discouerie of the whole trueth or else if hee stubburnely shall refuse that he bee holden as in the other case afore pro confesso conuicto When an enemie of malice or for other sinister respect doeth accuse a man of a crime iudiciallie and brings him thereupon into question and great danger if he cannot make sufficient proofes for his condemnation yet by probable presumptions hath so touched him as thereby hee becommeth vnto the Iudge iustly to bee holden suspected thereof In this case by both the lawes aforesaid the Iudge is to giue an oath of Purgation to the suspected person touching that crime which if he shall refuse he is holden as conuicted of it whereby it may happen that his accuser is more gratified and pleasured then by any proofes that him selfe could bring or could otherwise procure Is there not then much more equitie when the question and enquirie of the crime is stirred vp for a better purpose and without any such malitious accuser that vpon like presumptions and probabilities the like oath should be giuen and tendered by the Iudge to such supposed delinquent Can any man giue a sound reason why it should seeme equall that when an enemie gaue the first occasion pars reae should then vpon presumptions be vrged to take the oath or els to be condemned of the crime And that it should not bee much more equitie for him to take it when the Iudge for his dueties sake and stirred vp by probable inducements doeth originally call him into question And when a man is pressed with such probabilities as the Iudge findeth to be sufficient thereunto hee is iustly put to his oath of clearing himselfe if hee so can and so this tendeth in some sort to his owne benefit Is it not much more reason then that vpon the like presumptions appearing to the Iudge hee be vrged to that oath to tell the whole trueth of the matter with the pertinent circumstances aswell for the publike benefites sake of the common weale as for his owne good and escaping of punishment Some may perhaps here aske why the proceeding by the Iudge of Office should bee more priuiledged in this behalfe then when a crime is proceeded against by an accuser or party For in the very beginning of the sute the Iudge proceeding ex officio may require the oath of the supposed delinquent touching both circumstances and crime but when hee proceedeth by way of accusation albeit in courts Ecclesiasticall the partie conuented may be examined by oath vpon other matter of circumstance yet hee may not so be examined touching the very fact and crime or any thing neerely or presumptiuely tending thereunto vntill by sufficient presumptions the Iudge be induced to account him greatly to be holden suspected This question almost doeth answere it selfe for when the Iudge proceedeth by enquirie before hee offer the oath to the partie the presumptions against the partie are knowen vnto the Iudge but when by way of accusation till the accuser haue brought in such proofes as hee can they are not knowen vnto him Besides the Accuser doeth it of malice or for reuenge or for other satisfaction of his owne priuate humour for the most part But the Iudge by common entendement doeth it of sinceritie of minde and for the good of the common weale Againe 1 Panorm in c. per Inquisitionem de electione c. inquisitionis extra de accusat those that be conuicted vpon such Enquirie are most vsually punished by some milder punishment then when they are connicted vpon an accusation yea and in ecclesiastical courts sometimes not so much as punished at all corporally but meanes onely of inducement to repentance are vsed towards them All which being ioyned to that which hath bene afore spoken of the equitie of Enquirie ex officio doe sufficiently I trust recommend both the generall equitie of the vse of this oath and also the great necessitie of it in sundry causes and vpon diuers occasions But the Treatisour towards the very beginning of his disputation against these oaths surmiseth that in iustification of the equitie and conueniencie of them it will by vs be alledged that the same is requisite for the Enquirie and finding out of suspected faultes whereof there is no proofe and to search and trie the euill mindes and corrupt consciences of dangerous dissemblers and so necessarie for the gouernement of the Church and common wealth He that
doeth seeme to encline this way in making an oath to bee ouer feeble a foundation to ground a sentence vpon Why if the partie confesse against himselfe that which is obiected shall he be thought but to dallie and to haue a longing to be punished so as the Iudge may not safely take him at his word and giue sentence against him If a prisoner arrained pleade guiltie what needes either euidence or Iurie to be vsed Confessio est liquidissima probatio plusquam probatio But if he denie it yet if the proceeding in a court Ecclesiasticall be to his purgation alone he is not to be acquited without a competent number of Compurgators neither yet is he for euer so to be cleared by the Iudges sentence but that euen after such purgation good proofes touching the very fact it selfe if any can be made are to be admitted which case happening he is punishable both for the fact it selfe and for his perturie But when the proceeding is by way of enquirie for punishment or for reformation then albeit the defendant deny it neuerthelesse witnesses or other proofes if any may be had either then or afterward are to be vsed against him And therefore in such case as lawe alloweth sentence to bee giuen vpon the defendants oath yea or vpon iudiciall confession without oath it is no feeble but rather a most strong foundation for the Iudge to build vpon The Note-gatherer no lesse missing the cushion and matter in issue then the Treatisour reasoneth thus against oaths which they call generall vnto all thoughts wordes and deeds Her highnesse saieth he hath oftentimes caused to bee openly notified in the Starre-chamber that her gracious meaning is not to search into mens consciences or to force the same but onely to extend the lawes vpon crimes committed either in word or deed Belike if a man keepe not his conscience as he calleth it to himselfe but vseth some ouertword or deede hee will then I hope permit the partie defendant to bee interrogated by oath as in the Starre-chamber touching such a crime which if he will grant let him as much as he thinketh to bee for his ease exclaime still against all such Ordinaries and Commissioners Ecclesiasticall as shall happen to giue such oath more generally or without any ground precedent of inducement thereunto by lawe allowed for these vntrue imputations will not touch any person or practise that I haue heard of to bee vsed since her Maiesties happy raigne Thus much for the equitie of the defendants oath in some matters criminall and in answere of obiections made agaynst the conueniencie of it CHAP. VI. That oaths of men touching matters dammageable criminall and penall to themselues are vrged exacted by temporal Courts and by the lawes of this Realme HEre I am to shewe that the like oath in matters criminall and that may be penall to a mans selfe is practised by the course of the Lawes of this Realme and therefore this proceeding is no contrary or repugnant course vnto them The Chancerie is a principal and high Court of this Realme and a court of conscience and equitie to moderate 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 viz. the exact rigour of lawe In this court though the procedings for the most part be moued Ciuiliter nō criminaliter that is not to any publike punishment but for the priuate interest of the partie Neuerthelesse many bils of complaintes bee there put vp against defendants wherein sundry their lewd practises and misdemeanors criminall bee deduced and set foorth and yet must the defendant make perfite and particular answer thereto vpon his oath The same course is obserued in other courtes of the nature of Chancerie as in the Court of Requests And somtimes further also euen quando agitur criminaliter adpoenam partis as is oftentimes obserued in the Court of the Counsell in the Marches and principalitie of Wales and before her Maiesties Counsell established in the North parts So that to the intent of a defendants being vrged by oath sometimes to discouer himselfe in a matter criminall it commeth to as much in these courtes as is chalenged for vnlawful in Courtes ecclesiasticall For though in some of those aforesayd Courtstemporall no punishment can be inflicted thereupon yet either discouerie of themselues if they be faultie with shame and reproch to them or else periurie is enforced in them all which is the maine inconuenience that the Treatisour and Note-gatherer doe assigne against such oaths There be sundry considerations touching the court of Chancerie which if we do attentiuely confider will argue vnto vs the long vse and approbation of vrging defendants answeres to bee made vpon their corporall oaths yea though some matter of their owne crimes and dishonestie be therein deduced It must needes be that the Chancerie is the ancientest court of this Realme because frō thence all originall writs Commissions do come wherupon the other courts do ground all their proceedings And yet by all probabilitie it is most likely that as in sundry other points of proceeding there so in this behalf they drew the exacting of the defendants answere vpon oath from the Ciuill lawe For that Court being here in time and nature the first could not take light from other Courtes of the Common lawe but from some other that was both afore it and them Secondly Answeres Reioinders c. in the other Courtes most vsuallie termed courtes of the Common lawe are not put in vpon oath Thirdly the very worde of Cancellarius and Cancellaria are Latin wordes that are found to haue bene first vsed by the Ciuill lawe and did signifie such an assistant to the Soueraigne prince or other supreme Iudge as for his wisedome and skill in lawe was adioyned vnto him and was so called because he did sit intraeosdem Cancellos cum Principe in the same Tribunall seate or bench with him and in his absence determined matters for him and in his stead and yet we read not this word of Cancellarius in the ancient times of the Ciuil law that was practised whiles their Commonwealth stood vninuaded by perpetuall Dictators Emperors nor till aboue 300. or 400. yeeres after about which times and afore this realme being wholy vnder the Romanes dominion as the chiefest part of the then knowen world also was no doubt their language but especially their lawes were here receiued The sundry Colonies and other townes built and inhabited here by the Romane souldiours and others must needs spread that language very farre The old Brittish or Welsh language at this day after so many periods of times vicissitude of Fortune and mixture of other nations doeth retaine very many prouinciall Latine wordes Martiall the Poet that writ in the times of Uespasian and of Domitian Emperours saieth thus of a Brittish woman Claudia caeruleis cum sit Ruffina Britannis Cur quaeso Latiae pectora gentis habet This woman is thought by many to be the same whom S. Paul salutes in
against the parties examined and therefore to be tendered more then ex mero officio In matters that may induce dammage to him that sweareth there be sundrie examples at the Common lawe one or two may suffice If 2 T. 25. Ed. 3. fol. 44. a woman couertbaron being to acknowledge a fine it be doubted whether she be 21. yeeres of age or no she shall be examined vpon her oathe In an 3 P. 3. Hen. 6. 38. action of detinue of goods supposed to be deliuered in Fleetstreete the Plaintife was examined where they were deliuered An 4 H. 3. H. 6. 30. obligation bare date in the Countie of Lincolne and a Scriueners name was put to it that remained in London hereupon the Plaintife was examined where the obligation was made Besides the dammage hereof the circumstances of this might be such as might haue vrged him to discouer perhaps a forgerie It is a commō practise in this land straitly to examine persons holden suspected of some crime or offence and to vrge their answers or else the Magistrate will and must needes holde them greatly violently to be suspected litle lesse then conuicted If an vnlikely person but suspected at large be found in a priuie search or stayed as he passeth and be brought before a Iustice of peace or higher Officer is he not straitly thereupon to be examined of his abilitie course of life trade and place of abode c. which may importe Roguerie that is both criminall and very penall to him if he be such an one in deede and shall choose rather to endure the penaltie of lawe then to lye before God and his Magistrate If to this it be answered that such examination is without oath I replye that this is but as it happeneth but admit it so be yet the matter is hereby nothing holpen For as to this purpose of being vrged to discouer him selfe which these men call accusing in a matter criminall penall it comes all to one passe because he must either holde his peace altogether or confesse the truth plainly both which may bring him to punishment or else he must lie whereby he grieuously offendeth God though not in so high degree indeede as in periurie neuerthelesse this bond of not saying vntruely before a Magistrate must needes be counted a kinde of causatiue vrging of a man that hath any conscience to discouer matter of crime against himselfe if he be guiltie in deede of that which is asked of him If a Sherife Stewarde of Liberties Reeue Bedell of Strayes and wayues rentgatherer sheepe-Reeue Baylife Baylife of husbandry or other accountant to the Prince or any great Lorde be vrged by their Auditour to giue vp their account vpon their oathes as is vsually done doeth not this in case they haue done negligently or deceitfully tend to bewray or if ye wil accuse them selues in a matter ignominious to themselues and in it selfe criminall The Treatisour himselfe though he bend most of his ordinance against this point yet when he had more exactly a little waded into and weyed the matter seemeth but onely to finde fault with sifting generally by oath of all mens thoughts words and deedes and especially sayth he in another place in matters of life and death which his issues if he will not waiue and relinquish there is none I thinke in this Realme that will impugne that his assertion either by colour of lawe or by rigour of practise For euen at the common lawe oathes in matters criminall and penall to the parties bee oftentimes necessarily to bee taken when they are enioyned For if 1 Stanford Pleas of the Crowne li. 3. ca. 14. a man sue an appeale of murder against another who will bee tryed by battaile the defender that is appealed must before the battaile holding his aduersarie by the hand solemnely sweare thus Heare this you whome I holde by the hand who call your selfe by such a name I haue not feloniously murdered your father c. so helpe mee God and all Saints Of Oathes ministred at the Common lawe tending to the discouerie of matter criminall and penall to the partie himselfe I finde these examples One 1 M. 34. Ed. 3. fol. 3. sworne of a Iurie did after departe from his fellowes In the meane time an other was sworne in his roome But when the first returned hee was by the Iudges ex officio examined vpon his booke oathe whether hee had talked with the defendant or beene in his company since he was sworne This if he had confessedit as it is an offence so had it beene very penall vnto him Neuerthelesse for his apparant fault of departure hee was committed and fined In an action 2 T. 7. H. 4. fol. 19 of Formedon the tenant of the land was supposed to confesse the action of the demandant by couin and was thereupon examined by the Iudges and the couin being thereby founde it was decreed there should be no iudgement and that he should be punished by their discretion A 3 P. 9. H. 5. 1. woman brought an appeale for the death of her husband but as it was supposed by another name then she had in very deede vpon which couin she should haue beene fined and thereupon she was examined A 4 H. 35. H. 6. Fitzh Abridgem tit examinat nu 17. Iurie after they were gone together were supposed to haue receiued a letter on the behalfe of the defendant which in law is said to be a grieuous fault and it is to be grieuously fined yet all the Iurours were thereupon examined vpon their oathes A 5 M. 35. H. 6. 11. Sherife returned that certaine witnesses who should haue appeared were dead whereof it was desired he might be examined because the returne was razed and two of the witnesses were saide to be aliue whereof one was then in the Hall and had his remaining in the Countrey Whereupon the Sherife was examined which Prisot enformed and hee deposed that the returne was made by a Clearke and neither by him nor by his Vnder-sherife and that he knew two of the witnesses were liuing Now if he could not with a good conscience thus haue cleared himselfe vpon his oathe had not this crime of razure and false returne beene verie penall and shamefull vnto him being so directly contrary to honestie and to his oath taken at the entrance into his office 1 H. 10. Ed. 4. 16. And it was at another time the opinion of the whole court if the parties in a cause had then had a day in courte that they might haue examined them touching their couin and lewd practise tending to defeate another man of his lawfull action They haue a certaine custome in London and it is allowed for good by the Common lawe of the Realme 2 Brooke tit ley gager nu 77. That if the defendant thinke the plaintife haue made a false declaration in an action of debt he may desire to haue the
lawe then can it not bee auoided but that the Treatisour in very deede had such an vnduetifull and slaunderous purpose and reach in his words aforesayd To the second degree of their bare affirmations such speaches of Temporall Courts practise or forbearing to practise as these following bee doe belong videlicet that such a generalloathe or such like ex officio was neuer offered nor taken for you may perceiue he is not resolued throughly whether of these two hee had best insist vpon or take for his issue And that the common lawes haue euer reiected and impugned it Likewise that it was neuer put in vre by any Ciuill Magistrate of the land but as it is corruptly crept in amongst other abuses by the smister practises and pretenses of the Romish Prelates and Clergie-men which asseueration as it is in that part voyd of all likelyhood where it is surmised that the practises pretenses of Clergie-men did first shoulder this oath into Ciuill or Temporall Courts so is it yet an implied kind of confession that it is not such an Alien to the Ciuill pollicie of the Realme nor by it wholie reiècted impugned as in his treatise he beareth vs strangelie in hand Besides that such implication is flat repugnant contradictorie to y e Note-gatherer who writeth that it was neuer vsed here to make men accuse themselues for by this accusing he meaneth giuing of oaths to defendants touching discouerie of some their owne offences Lastly that where losse of life libertie or good name may ensue the Common law hath forborne oathes As for losse of life it is yeelded to be true which he here saith but not so for the other two for the Starre-chamber being a Temporall or Ciuill Court imposeth oathes where both infamie may and doeth follow for punishment and where libertie is restrained most often by imprisonment and sometimes also by banishment Vnto the other head of their bare affirmations which is what the Common lawe holdeth in this behalfe such of their speaches as these following doe appertaine videlicet to giue oath they meane to the defendants in causes of life and death is contrarie to the Iustice of the lande This albeit it no way impugne any practise Ecclesiasticall yet is it flat repugnant to the Note-gatherers assertion spoken vnto in the 1 ca. 10. pag. 93. second part Agayne that the Common lawes haue not appoynted an oath to bee vsed but according to the right institution thereof and that in causes capitall or criminall these lawes neither vrge by oath nor force by torment a thing most cruell and barbarous and therefore agaynst torturing he alleageth master Fortescue in his booke De laudibus legum Angliae It is wholie besides my purpose either to auow or disauow here the course of finding out trueth by torture yet much might on both sides probablie bee sayd therein both by reason and also by graue authoritie That the defendants oath in causes capitall neither is vsed nor allowed by the lawes of this Realme I doe yeeld vnto him as afore I haue sayd but for torture let me neuerthelesse put him in minde that it may perhaps be thought of very hard to haue it thus affirmed that the torturing of supposed Capitall offenders not only vsed in Campes but also within the Marches principalitie of Wales euen in time of peace well warranted by her Maiesties instructions and by Act of Parliament in the Tower of London for matters of treason should all of them be accounted absolutely contrary to lawe or which is more to bee courses most cruell and barbarous The other poynt thereof which is of not vrging a defendant by oathe in any cause criminall is the maine point here trauersed betwixt vs and therefore may not be caried thus away by him per petitionem principij without some sound reason All these aforesayde speaches I doe muster amongst their bare affirmations and haue the longer stoode vpon them because themselues doe not so much as assaie or vndertake to prooue most of thē by any colourable argument or authoritie for that the reasons which they tacke on vnto some of them doe not hang together by any consequence and for that diuers of them might bee granted without any detriment to the cause which wee defend for they be but voluntarie speaches let slip at randome this therefore commeth vnder his mistaking of the true issue yet they be such as seemed not vnmeete to bee mentioned least if the Author of them doe happilie holde them for sound reasons hee should complaine to haue a piece of wrong offered vnto him for that all his booke was not spoken vnto and answered Next doe follow those their reasons to be discussed which they take from the lawes of this Realme and first concerning such of them as be made out of Statutes and afterward we will come to their booke cases That which hee speaketh of Magna charta albelt he handle it last yet for the ancientie seemeth to deserue the first ranke he auoucheth no particular part thereof but taking as graunted a contrarietie belike in his opinion not trauersable to be betwixt proceeding by this oath and the sayd Statute he onely in high wordes telleth vs of a most iust curse of Anathematizing laied by the Bishops then against all wilfull infringers of that Charter If I should gesse what poynt thereof it is which hee intendeth to bee so contrary to these oathes I would take the nineteenth chapter thereof if any to bee meant both because putting to an oathe is there mentioned and for that I haue heard it to like purpose alleaged by some other Howbeit the Treatisour hauing farre better insight as seemeth in lawe then hee that so alleaged it thought good to skippe it ouer without all allegation for feare it would not so wel helpe his turne The wordes are these videlicet No 1 Magna charta ca. 19. Bailiffe shall from hencefoorth put any man to his open lawe nor to an oathe vpon his owne bare saying without faythfull witnesses brought in for the same I must confesse that these wordes are some thing too obscure and darke for mee to vnderstand what is positiuely and preciselie meant by them and so much the rather because I know not the vsage afore that time which thereby was ment to be remedied except I should coniecture that the bare saying there spoken of is to bee referred to the man that taketh the oath and not to the Bailife and then would it seeme to establish that practise which is vsed in waging of lawe with two or more witnesses or handes concurring with his oath that sweareth Howsoeuer it be in verie deed to be vnderstood it is easie inough to gather what can not be meant by it First therefore it cannot any way be extended to proceedings and courtes Ecclesiasticall for whatsoeuer is in that Statute graunted after confirmation of the Churches liberties except it bee otherwise plainely expressed is referred to Courtes
H. 8. cap. 14. preamble of a statute of king Henry y e 8. which preamble for breuitie sake he omitteth yet hee omitteth not to gather therefrom that which was neuer scattered viz. so we see saith he that vnder cloked and couert termes of Canonicall sanctions viz. vsed in the statute 2. H. 4. the clergie men vsurped vniustly iurisdiction ouer the people ministring vnto them captious and snarling Interrogatories and as it should seeme by histories vpon oath contrary to the true meaning of the lawe and lawe-makers and against the right order of Iustice and all good equitie impugning thereby the royall prerogatiue the imperiall Crowne the Princely scepter lawes and policie of this kingdome for which cause he saith it was repealed These be imputations of great and high matters which he auowcheth to be by such oath impugned which though he say we see by that preamble though indeede hee would not let vs see it yet when all is cast vp his proofes are no more but thus viz. as it should seeme but how much hereof may in trueth thence be seene either plainely or by any seeming I would the clearest sighted of that opinion would take the paines to peruse that hee may withall discerne with what vpright mindes and sinceritie some of his chiefe complices doe write of this matter For the very true and onely causes of repeale of the statute of heresie 2. H. 4. by the preamble of the saide statute 25. H. 8. nowe likewise standing also it selfe repealed are assigned to be these viz. the not declaring thereby what should be heresie The terme of Canonicall sanctions and other termes thereof so generall that the best learned coulde scarse auoyde the danger of heresie if he should bee examined vpon captious Interrogatories the vnreasonablenesse of being put to losse of life c. vpon suspition and without accusation or presentment whereas for treason it must bee vpon presentment verdict confession or proces of outlawrie and for that speaking or doing against the Canons c of Popes being but humaine yea and many of them contrarie to the kings Prerogatiue Royall is by the sayde Canons made to bee heresie so that there is not one word mentioning much lesse tending to the condemnation of ministring oath no not so much as in the crime of heresie which is capitall nor yet any of the other great thunderclaps which the Treatisour pretendeth he sawe or heard of in that Preamble against oathes in some criminall causes To this purpose he woulde haue vs further note that the statute of sixe Articles doth not enact nor allowe but that it seemeth rather to disallowe and ◅iect these oathes Why Sir it speaketh not of them at all and can you therefore gather that it doth not allowe but rather disallowe them you might so reason against them from all the statutes that euer were made touching any different matter whatsoeuer But say you it seemeth rather to disallowe them is not this seeming a sound demonstratiue argument to ouerthrowe a course so long and so manifoldly vsed and that in the courts of both sortes but why doth it so seeme forsooth because the king is by that statute authorised to direct Commissions to Ordinaries and others to take information and accusation by the oathes of two sufficient persons at the least or by verdict of twelue men What then therefore the examination of the partie vpon his owne oath when he is found out because it is omitted is disallowed Though this loose reason should followe yet none oath should thereby bee touched other then ministred in matters of heresie But if he might reason thus because those Cōmissioners might beginne and grounde their proceedings done by way of speciall enquirie in processu punitiuo vpon such information accusation or verdict therefore they might not proceede afterward according to any course of the lawe ecclesiasticall then might he as well also argue that they might not deale vpon an heretiques owne voluntarie confession for confession is no more mentioned in that Statute then the defendants oath is But what if that Statute had expressely disallowed that oathe is it not nowe repealed and is it woorthie to bee alleaged seeing hee else-where chargeth it to be A bloudie and cruell Statute I perceiue it is verie loose and badde stuffe which hee will not take holde of where hee may haue but as much as a shadowe or glimpse of any thing to his purpose May it bee thought that any man of iudgement can bee in deede ignorant but that such sharpe and pregnant conclusions as throughout his whole Treatise he inferreth cannot possiblie be grounded vpon so feeble and vnconsequent premisses yet hee sticketh not vpon these allegations aforesayd euen as if hee tooke them for good and sound arguments as a well-willer of Ordinaries to disswade them from further practise of such oathe least they bee found thereby not onely impugners of the Roiall Prerogatiue but discredited further by the breach of their owne oathes taken to the Queenes supremacie Neuerthelesse least I be mistaken by any it is to be remembred that he commonlie limiteth all his hote conclusions with some warie wordes of restraint as these videlicet such oaths and such like c. alwayes conueying vnder them a reference vnto generall oathes according to his first vntrue issue Well this helpeth his cause neuer a deale for if none of his reasons brought doe so much as ouerthrow those vnreasonable oathes which are by no man defended howe much lesse can they touche those particular oathes to matter in fact onely that we doe reason and treate of The reasons which he setteth downe as taken from the Reports of the common law doe now follow which are partly by propounding some examples how oaths be there vsed partly by auouching some cases seeming vnto him to inferre a cōdemnation of defendants oaths in any causes criminal Before he come to the first of these two there bee sundry conclusions propounded by him for proofe whereof all his reports out of the Common lawe be laied downe First that he may as he saieth deliuer our lawes Iustice of our land from so foule a slander as that they should bee sayde to allowe of such Catholique oathes Next to assure others like as himselfe is sure that such a generall oathe or such like ex officio was neuer offered by any Magistrate nor taken by any subiect by authoritie of the common lawe Thirdly that the Common lawes haue not imposed or appoynted an oath to bee vsed otherwise then according to the right institution thereof and the godly rules before by him remembred What those rules are I haue noted in the Epistle to the Reader Nowe if by these wordes videlicet such like ex officio he meane onely such generall oathes as afore he had vntruely imputed to Ecclesiasticall courtes then will I not trauerse any of these conclusions whether the oath shall be ministred vpon the Iudges office onely or at a parties instance Yet
vpon view of his proofes for them which shall followe I would the Reader might be pleased to consider whether I had not iust cause to put them downe for bare affirmations vnaccompanied in trueth with any reason Fourthly those booke cases are brought to shewe that the common lawes yea the common wealth it selfe hath euer reiected and impugned this maner of swearing whereof wee nowe intreate as a thing vnlawfull and iniurious But this last wee may not so easilie yeeld vnto him without betraying the trueth as we yet verily take the matter The examples then which hee bringeth in proofe of those conclusions and withall to shew how oathes bee ministred at the Common lawe are of witnesses deposing betwixt Prince and subiect or betwixt subiect and subiect of defendants waging their lawe in personall actions with two other swearing with them which wager is neuer admitted where there is witnesse though but one or matter of recorde or the parties owne hand writing of a tenant in a reall action waging his lawe of non summons for safegarde of his lande as hauing none other way to relieue himselfe agaynst the false returne of the Shiriffe Of examining the garnishours returned when the plaintife recouereth in a Scire facias by default vpon an action of deceipt brought by the defendant agaynst the Shiriffe and of a Tenant in a Praecipe of land casting an Essoigne of the Kings seruice where the Essoigner shall sweare that it is no fained excuse Out of these being graunted vnto him I trust neither hee nor any Logician in the world shall be able euer to drawe any sound reason so much as agaynst those generall and Catholique oathes with which throughout hee chargeth Ecclesiasticall Courtes howbeit very vniustly but much lesse agaynst those speciall oathes of defendants in some criminall cause whereof wee here intreate for the reason from these must thus of necessitie be gathered these oathes are vsed and are lawfull therefore the vse of oaths in any other sort is vnlawfull Therefore to presse vs yet further by some examples out of that lawe hee saieth It hath wholy forborne to minister oathes in criminall causes for that in wisedome it was foreseene by reason of mans frailetie what danger of periurie a man was likelie to fall into for safegard of his life for preseruation of his libertie credite and estimation The great presumption and danger of periurie if a man should be sworne in a cause Capitall vnto him I can easily yeeld vnto and that the sentence out of Iob to that ende is very apposite but for auoyding some restraint of his libertie for a time or for the onely retaining of his woonted credite and estimation that a man which hath any feare of God at all or but any slender sparke of godlinesse and true religion would wilfullie through periurie throwe his owne body and soule into hell neither lawe nor yet any nation in the world that I can reade of did euer presume And if great likelyhood and doubt of periurie be so effectuall a motiue for all wise Magistrates to forbeare giuing of an oath then must he also condemne oaths in most of the sayde examples by himselfe afore alleaged and commended for who is ignorant but that in most men there is more danger of periurie by swearing about debt and detinue to saue their goods then for their goodname as is somewhat touched 1 Vide 3. par c◅ afore Hereupon then all wagers of lawe should bee vnlawfull yea not onely for getting or keeping of goods but especially for lands this danger of mens owne periurie is apparantly great in that it is much more common to suborne others thereunto for this end then for preseruation either of libertie or of good name and honestie when these happē to be likewise questioned so that for danger presumptiō of periurie the tenants oath of non summons who is otherwise to lose his land should not be admitted by his owne reason Againe if this feare and doubt be so forcible and necessary a ground of forbearing to minister oath then what wil the Treatisour say vnto those wagers of law allowed of made as by the bookes 1 M. 8. H 6. fo 15 H. 20. H. 6 fo 16. H. 22. H. 6. fol. 41 of termes yeres doth appeare whereas both the plaintifes were vpon their intention examined by their owne oaths the defendants also were permitted to wage their lawe doe not these crosse-oaths inferre periculū periurij either on the one side or the other seeing thereupon oath may be against oath either directly or by implicatiō much more then any oath doth whether it be general or special in criminall causes that he or others do impugne Furthermore in these wagers of law vpon actions of debt or detinue or in actions reall this danger of periurie is inforced not only by the consideratiō of y e extraordinarie care which most mē haue of keeping or getting goods riches by hooke or crooke but somwhat also in regard of their owne worldly credites and honestie if the retaining of that bee of such moment to induce periurie as the Treatisour imagineth For when one of these defendants hath a good while stoutly publiquely stood in deniall of the matter for which he is sued will he not take it to be a reproch vnto him to haue it discouered by his refusal to sweare that he hath so confidently so long auowched an vntrueth euen to defeat another man of his due and right and therefore by all likelyhood what to auoid losse on the one side and shame or obloquie on y e other wil scarcely sticke to hazard an vntrue oath Lastly it is both lawful receiued by practise also when 2 Brooke titulo Iurisdiction nu 105. Iuries for trials of matters betwixt man and man or vpon life and death cannot agree within the time of the abode of the Iustices of Assises in that Countie that then they shall be caried along with the Iudges in cartes till they shall all condescend agree and in the meane time they are to bee kept from all meate drinke and candle light and may not this course driue such of them as cannot satisfie and conforme their owne consciences to the rest of their fellowes to yeeld at length euen vnto damnable and wilfull periurie rather then miserably to famish and to perish for want of foode We may therefore conclude that euery presumption or perill of periurie ought not to be holden sufficient to take away the vse of oathes otherwise being expedient from amongs the societies of men The Treatisour bringeth one other example of oathes out of the reports of the common lawe it is the vicar of Saltash his case 2. H. 4. by which he saith the vnlawfull imposing of an oath vpon him appeareth But it is not any vnlawfulnesse simply of imposing an oath that there appeareth or which was condemned by deniall of a consultation neither was it imposed but voluntarily
the Imposers of them to be in a Praemunire for incroching vpon the Kings rights and prerogatiues and for conuenting subiects by forrein made Lawes and for practising Antichristian Decrees and Popish Canons which hee sayeth appeareth by the Praemunire brought by Hunne against a person suing the said Hunne for his yoong deceased infants bearing-cloth by the name of a Mortuarie in an Ecclesiasticall Court howe doth this inferre that it is Praemunire either to encroch vpon the Kings rights prerogatiues though this peraduenture by some circumstances may amounte sometimes to no lesse or to conuent subiects by foreine made lawes It may not be thought that euery intrusion deteiner or concealement which is incroching vpon the Kings right or rauishment of his wardes which hee ought to haue by his Prerogatiue Royall is straightway and necessarilie a Praemunire neither were the Kings Temporall Courtes in this case encroched vpon because they could not giue remedie for deteining a Mortuary if this were so in trueth to be accounted neither yet is there so much as any mention made of foreine lawes which the Ecclesiasticall Court then proceeded by or practised This course of the Treatisour is rather to prophesie then to reason thus to tell vs afore hand vpon the very bringing of the action of Praemunire by Hunne what the iudgement was in that matter yea and vpon what ground the iudgement was giuen in a cause which neuer receiued iudgement for any thing I can learne To this point he also mentioneth the Praemunire wherein blind Nixe sometimes Bishop of Norwich was condemned and addeth to the aforesaid two points that by that also appeareth Iudges Ecclesiasticall are in Praemunire whensoeuer they exceede their Iudiciall authority But if euery exceeding of authoritie were a Praemunire then what Iudge is there of any court of either sort so skilfull or alwayes so aduised but might iustly feare that at one time or other he shall not escape this rigorous doom of Praemunire In trueth this example prooueth all his three points iust alike that is none of them at all I doe verily beleeue the Treatisour neuer sawe that Record if he haue either he makes verie bolde with his Reader or else with the Arte of reasoning thus to collect I haue perused the Record 1 H. 25 H. 8. Rot. 42. Suffolk it selfe it containeth a suite of Praemunire brought against the saide Bishop by the Kings Attourny generall on the Friday after the Pâ—…rification pleading the Statute of 16. Ric. 2 and adding that al Indictments Presentments and Impetitions in any court of the Kings 2 B. Nixe his condemnation in a Praemunite or in any Court of a subiects which is in any sort deriued or diduced from the Kings crowne duely taken or found are to be tried iudged in that Court where they were found or in some of the Kings Courts and not in any Ecclesiasticall Court and that whereas there was an old custome in the Towne of Thetford that whosoeuer should trouble any of the Kings or Duke of Lancasters tenants commorant in that Towne and shoulde call them by citation into an Ecclesiasticall Court out of the Deanery of the saide Towne shoulde thereby forfeit and he also that should execute such processe should also forfeit 6 shillings 8. pence which custom by a Iurie of twelue men being accordingly presented before the Maior the said B. cited the Maior two others to appeare personally before him in his Mannor and Chappell at Hoxne or Hoxstone in Suffolke The Maior and the one of the other two appearing and hauing nothing obiected but that presentment made were by the B. enioyned vpon paine of excommunication at the next court of the Kings to be holden in Thetford to call the same Iurours together and therepublikely to adnull and reuoke the said presentment as being against Gods Lawe so that saith the Record the B. did in an Ecclesiasticall Court iudge of the presentment being duely made in the Kings court and enioyned the reuoking and disanulling of it against the King his regalitie crowne c. wherevpon immediately the Bishop appeared and desired libertie of imparlance till monday next after and had it graunted vpon good mainprise c. On the prefixed monday the B. appeared againe and said he could not deny but that he was culpable in all the premisses put himselfe thereupon into the Kings hands c. so had iudgement to be from thenceforth out of the Kings protection and al his lands and tenements goods chattels to be forfeited to the King and that he should remaine in the custody of the Marshall quousque c. but presently vpon special grace of of the Court he was let to baile in a far lesse summe then afore for his appearance in Easter terme next after At what time hee appeared by his Atturney and both he and his pledges were discharged by vertue of an Act of Parliament made the same yeere Whereby wee may see that encroching vpon the Kings rights c. is not heere specially assigned for any cause of such iudgement and much lesse is the practising of any Canons or forreine made Lawes for they are not once mentioned and least of all that euery exceeding of their authoritie by any Court shoulde be a Praemunire For the originall and onely cause hereof was the B. enioyning of the Maior and of another townesman of Thetford vpon paine of censures to adnull and make voyde a presentment first duly made in a temporall Court of the Kings It is also to be noted out of the generall Atturneys bill in this Record where it is saide that presentments c. found or made in the Kings or in a subiects Court which is in any sort deriued from the Kings crowne must be tried there or in some of the Kings Courts and not in an ecclesiasticall Court that at this time Courts ecclesiasticall were not holden to be deriued any way from the Kings Crowne as no we they are and so bee acknowledged and indeede by conferring the times I finde that this fault of the Bishop was done in Nouember 24. H. 8. hee was attainted in Hilarie terme 25. H. 8. which is a yeere and more after and it was in a Parliament time that was continued till 30. Martij next aster Now the supremeheadship ouer the English Church was not yeelded vnto the King vntill the Parliament by prorogation holden the third of Nouember then next following viz. 26. H. 8. That which the Treatisour collecteth by Cardinall Wolseys Praemunire and the whole Cleargies also for assenting to and assisting the Court Legatiue which the saide Wolsey had erected hee himselfe doth sufficiently confute for albeit hee doe affirme that Wolsey was in a Praemunire for preiudicing but ecclesiasticall Courtes and not the Kings and thence gathereth thus How much more those which practise Antichristian Lawes and Popish Canons repugnant to the royall Matestie and policie of this laend yet doeth hee by implication contrary his owne
putteth him out of the Queenes protection forfeiteth all his lands c. and condemneth him to perpetuall imprisonment In a statute made against 5 5. Eliz. ca. 9. periurie the same time this prouiso is cōteined y t the said Act nor any thing therein cōteined shal not extend to any spiritual or ecclesiastical court or courts within the Realme of England or Wales or the Marches of the same but that al euery such offender and offenders that shall offend in forme aforesayd shall and may be punished by such vsuall and ordinarie lawes as heretofore hath bene and yet is vsed and frequented in the sayd Ecclesiasticall courts any thing in this present Acte to the contrary notwithstanding Where I thinke it will not be doubted but that vnder that worde punish is vnderstood the whole course also vsed by those lawes which must neeedes goe afore and doe tend to the conuicting of such faults as be thereby to be punished It was neuer claimed nor vsed by any Ecclesiasticall courts either afore or after to punish any periurie or subornation of periurie but either for breach of oathes voluntarily taken called laesio fidei in sort as is shewed in the first part or else for periurie or subornation thereof committed in an Ecclesiasticall court matter So that it can not be intended but that this statute meaning to reserue vnto courts Ecclesiasticall if not more yet at least the punishment of all false oaths there made did minde withal rather to establish then to preiudice oathes there appointed to be taken by such vsuall and ordinarie lawes Ecclesiasticall For if oathes especially in criminall causes were neuer there to be taken there could then be none at all or at least there would be much lesse danger of any periurie and breach of oath In the 1 5. Eliz. ca. 23. statute de excōmunicato capiēdo sundry grieuous crimes being of ecclesiasticall conusance are reckoned vp thereby it is also prouided that the significauit frō the Ordinarie vpon any of them must cōteine that the excōmunication proceeded vpon some cause or contempt of some originall matter of some of the said crimes there mentioned Now it is sure that after appearance yeelded cōtempts most vsually are committed by not performing something that is cōmanded according to that law as by refusing to sweare or being sworne to answere directly as a man ought So that this statute leaueth the determination of all such contempts to the disposition of that law by which the proceeding is made I haue touched afore in the second part certaine cases where the common law not only alloweth but also in some sort aboue the other course doeth priuilege vnto courts Ecclesiasticall the proceeding ex officio against crimes punishable by that Iuridiction As namely that in proceeding against an offence for laying violent hands vpon a Clerke Bryan and Littleton helde no man gainesaying it that the 2 M. 20. Ed. 4. 10. spirituall court may punish it ex officio but not at the sute of the partie least the beater be thereby kept from his absolution till some temporall duetie be contented and payde And 1 T. 12. H. 7. fol. 22. Mordant was of opinion that if a man be sued by a party prolaesione fidei in not paying a summe of money promised there shall lie a prohibition yet if the Iudge ecclesiasticall shall doe it ex officio that then no prohibition shal lie And a iudgement giuen long afore in the booke of 2 Lib. 22. Assis. fol. 70. Assises seemeth to accorde herewith and to strengthen this opinion Fitzherbert in his Nouanaturabreuium reporteth the Lawe to be that an 3 Nou. nat breu tit consultation fo 50. deinceps Ordinary may cite proceede against a man ex officio pro violenta manuum iniectione in clericum Likewise for tithes deteined in the time of the vacation of a Benefice so also hee may cite those who refuse to mayntaine a Curate or Chapleine and for fornication and like offences But by the law ecclesiasticall according to which the proceeding is the course of proceeding against crimes and offences for the most part is by the parties corporall oathe vnto articles or positions of the very crime it selfe so there be precedent a donunciation a fame notoriousnes of the facte taking in the maner or anie other matter sufficient in law to open a way to such Enquirie That enquirie is allowed by common law vnto Courts ecclesiasticall and so consequently these oaths appeareth also further by two precedents of consultations set down in the Register The 4 Register tit Consultat fol. 48. a. former of them mentioneth alloweth of an Inquisition made by the Deane of Yorkes Officiall and of his proceeding therevpon for defects in a Chancell and for want of sundrie ornamēts and other requisites in a Church The 5 Ibid. fol. 54. b. other beside a consultation doth conteine also a cōmandement to the Ordinarie to take full information euen by way of Inquisition and by other meanes touching the value of tithes and to certifie into the Chancerie Now al Enquirie generally as is shewed afore is ex officio and is by oathes of other men in generall enquirie and in processu informatiuo and may be by the oath of the defendant in processu punitiuo so the crime be not capitall or of multilation of limme But to speake more particularly for proceeding of Office we finde there that an 6 Ibid. fol. 51. b. Ordinarie proceeded ex officio as for a crime against a parishioner for tithes deteined by him whiles a benefice was vacant That it is 7 Ibid. fol. 49. 〈◊〉 allowed vnto them to proceede against crimes ad correctionem animae we haue a precedent there of an Ordinaries proceeding against a lay man for vsurie euen at the instance of a partie grieued That against crimes defects and excesses they may proceede obiect articles ex ossicio 1 Ibid. fo 51. b. appeareth by the precedēt there set downe where an Ordinarie proceeded ex officio to the interdicting of a church by reason a part of diuine seruice as it was then holden founded to be vsed in that Church was withdrawen Where an 2 Ibid. fo 43. b. Ordinarie proceeded ex officij sui debito to the correcting of crimes and excesses of those that were vnder his Iurisdiction and among others obiected articles against a Knight for not sufficient reparations of a Church tending to the correction of his soule by reason of his deteining of that which hee ought not this is there allowed to belong to the court Ecclesiasticall and to the liberties of the Church Likewise we find there an 3 Ibid. fo 51. a. Ordinaries dealing allowed who proceeded ex officio against one that had laied violent hands vpon a Clearke so farre foorth as he dealt but for correction of the delinquent to the excommunication of him punishment of his sinne without adiudging any
amends to the partie wronged for this belongeth to a Temporall Court 4 Ibid. fo 50. a. b. Vpon a publike fame arisen that a certaine parishioner did with hold his due oblations refused to be confessed to the priest to receiue the communiō at least once a yere the Ordinary ex officio did call him to the intent to inflict some corporall paine vpon him for correction of his soule and this proceeding is there allowed vnto Ordinaries to be of their iurisdiction and lawfull One 5 Ibid. 54. b. 55. a. Lindsey a publike Notary being infamed aswel of a crimeof fornication for so I take it that it ought to be read by him cōmitted as for contēpts done to that court was ex officio proceeded against by y e Deane of the Arches for correctiō of his soule maners both which are there allowed together with such proceeding to belong to y e libertie of the church to eccles iurisdiction In which copie of consultation it is to be noted that towards the end therof also in the title of it in the margent this word defamationis is vsed in steed of the word fornicationis for actions of defamatiō be seldom or neuer sued ex officio but at the instance of some partie grieued Besides mention is there made of committing it within that iurisdiction which in desamation that is not properly said to be committed is not material so the defendant remaine then in that iurisdiction and therefore where in the beginning of that Writ the wordes are printed Super formationis c. and conuerso which hath no sence nor yet is any Latin no doubt it ought to be super crimine fornicationis c. commisso As for the 1 Ibid. fol. 45. 〈◊〉 crime of fornication it is twise besides noted by the Register that Ordinaries proceeded against it in that forme In the first wherof it is said that the Ordinary proceeded ex officij debito as bound by his office duty against a chapleine that kept a cōcubine publikely to the danger of his owne soule with scandall of others Therefore this crime was obiected against him ex officio for his correction and for reformation of his maners In the 2 Ibid. fol. 57. b. later of them the Official of Canterb. proceeded ex officio against a vicar for the same crime for contēpts also by him made against that court ad correctionē animae suae And there it is said of both the faults as in al the former cōsultatiōs to like effect that this is cognitio spiritualis quae ad forū Ecclesiasticum pertinet in praemissis And the said writ runneth thus Cùm vos nuper ex officio vestro fama publica referente quod T. c. vestrae iurisdictionis C. in amplexibus fornicarijs tenet ipsum corā vobis in curia christianitatis pro correctione animae suae in hac parte citari feceritis procedentes contra eum ibidem iuxta canonicas sanctiones c. vobis significamus quod in causis praedictis ex officio vestro quatenus ad correctionem ipsius vicarij non concernunt placita de catallis debitis in curia Christianitatis procedere vlterius ibidem pro salute animae suae statuere facere poteritis quod ad officium vestrum speciale noueritis de iure pertinere prohibitione nostra praedicta non obstante So that by these so many precedēts of consultations by citations proceeding against crimes c. being of that iurisdiction by way of inquisition or enquiry by y e authorising of ecclesiasticall iudges in al of thē to proceed therein to do quod ad forum ecclesiasticū nouerint pertinere by the obiecting of the crimes to the parties enquired of ex officio iuxta canonicas sanctiones ius libertatē eccl which maybe by oath in matters aswell prohibita quia mala as mala quia prohibita against lay aswell as ecclesiasticall persons we do conclude gather that by so many iudgemēts of the cōmon law for crimes of ecclesiasticall conisance and consequently in matters neither Testamentarie nor Matrimonial any persons whether lay or ecclesiasticall being vnder that iurisdiction may be cited though against their wils by Ordinaries Iudges Ecclesiasticall ex officio ipsorum mero And vpon apparance may by censures ecclesiastical c. be vrged vpō their oaths vnto examinatiō to answer matter though it concerne their owne crimes And therfore that the lawes of this land do warrāt alow the ministring of that othe wherof we intreat vnto Courts ecclesiasticall We do onely say that the defendant may lawfully be vrged in due proceeding of office to answere concerning some crimes of his owne by vertue of his oathe But according to the Treatisour Note-gatherer and others who seeme to confound all proceeding ex officio with the very ministring of an oathe to a defendant touching a crime obiected against him we might a great deale more peremptorily conclude that if these two as they holde be but in trueth all one thing then wheresoeuer proceeding of office is there such oathe of necessitie must be also ministred and taken These proofes last alleadged are gathered out of Writtes of Consultation after that by the parties conuented Prohibitions had beene brought to remooue the causes from ecclesiasticall Courts And therefore no doubt but that the Lawe before the Consultations awarded was thoroughly debated and that the parties delinquent were cited and proceeded with altogether against their willes For can any be so simple as once to imagine that a man who is cited to answere in a cause criminall and to be punished or corrected for it will willingly appeare and answere if hee neede not to come at all and were therein also by Lawe protected Or that he wil be at cost to procure a prohibitiō to stay the dealing where he is willing enough to be proceeded with But besides allowance hereof by the Statutes and Common Lawe vnto Courtes ecclesiasticall the practise also by time immemoriall hath runne accordingly as may positiuely appeare by Acts of Ecclesiasticall Courts and by way of abnegation may be shewed from the Recordes at the common Lawe In that as I thinke it will not in them be found that any Prohibition hath vpon this point onely beene awarded thence or at least vpon debate for obtaining of a Consultation such hath not stoode nor beene mainteined And albeit either vpon this consideration or some other as weake certaine euill disposed and factious persons haue long agone disputed and maintained opinion against oathes ministred both in Courtes temporall and Ecclesiasticall yet vpon generall mislike of such fond opinions as may be gathered a Prouinciall constitution was then agreed vpon and concluded to make euen all disputations against oathes ministred in either court to be heresie which Constitution I haue not hitherto found to haue bene misliked much lesse condemned at any time since as
viz. that therfore they may not giue oths but as the cōmon law doth wil not any way follow thereupon because the Q. prerogatiue royall and common lawes are so farre from restraining or forbidding these oathes that as it hath beene prooued they allow them and the Temporall Courts in many like cases vse not so much as a different course from this which is in speciall controuersie Now if it shall be said which also some very learned men do hold as the Treatisour confesseth that the Statute law made the first of her Maiestie warranteth and alloweth this manner of oathe then to shew this to be as he conceiueth it absurde hee telleth vs of some other points also defended vpon the generall words of that Acte and of the Commission by the saide learned men which seeme vnto him to be also no lesse absurdities then is the ministring an oath in a cause criminall therfore the one no better warranted thereby then the other for to what other purpose then this he should bring them I cānot possibly cōiecture The first fault he findeth with such learned mens sayings is for that they iudge it to be warranted by the Act and by the Cōmission to put men to othes none accusation sute or lawful informatiō presentment or indictment iudicially preceeding or depending He may father vpon such learned men what he please but is it likely that he himself would thus obiect as if he required bils of Information Inditements as it is at the cōmon law to be vsed also in courts ecclesiastical seing both himselfe and the Note-gatherer do tie the Commission to causes only ecclesiastical and they also to be dealt in only ecclesiastically Such learned mēs sayings may wel truly be defended as namely whē either the offence is notorious or is knowen to the Iudges themselues to be dangerous scandalous to be suffered For these two cases be out of all those that hee nameth yea though he should most vniuersally take suite for any prosecution by another and information for any priuate credible suggestion or denunciation made The second errour which he assigneth to be holden by them is for that secret information may be admitted suppresso nomine notificantis and he calleth such informations secret accusations and the men malicious calumniators adding that all good lawes and well gouerned common wealths haue such hidden backbyters for apparant accusers But if all good Lawes and well gouerned common-weales do indeed hold such men for apparant accusers then doth it follow that when such Information is giuen there is no want of an apparant accusation Yet in very deede euery relation made to a Magistrate by such as will not prosecute nor perhaps bee seene in the cause for some good consideration is not by any law nor in any common weale that I know of holden for an accusation for a malitious calumniation or for any secret backbiting nor yet deseruedly by any necessitie is so to bee accounted For besides other countreys which I haue read of such priuate informations haue oftentimes their manifolde good vse euen in this Realme yea and amongs ech degree of Magistrates And if they should be 1 Vide 2. part pag. 85. wholy reiected or neglected might sometime bring an whole subuersion vnto vs all I pray were those that gaue the first information of Babingtons damnable conspiracie to be misliked as secret backbiters or was the examination of these traitors and the proceedings vniust because the names of the intelligence-giuers were to this day suppressed By this example then you may wey consider of sundry the like Howbeit such informations in ordinarie courtes Ecclesiasticall be not holden for sufficient ground of Speciall Enquirie except they be very frequent and the offence scandalous and in Commssion courtes they bee as rarely receiued as in any courts Temporall of this Realme whatsoeuer and then but from very great and credible persons The third fault he findeth with such learnedmens opinions is that the Iudge may professe himselfe to be an Accuser which lawlesse proceeding the Iustice of this land he saith detesteth for that no man may be accuser and witnes or Inditour and a Iurour therefore much lesse may the Iudge be an Accuser For answere whereof first the lawes ciuill and ecclesiasticall holde not the Iudge proceeding of office to be any accuser but that whereupon the Enquiry is grounded to represent the accusation and so there is no need for them to pleade such plea as he here surmiseth Secondly that an accuser may in some case and sort be a witnes c. is 2 Vide 2. part pag. 110. 111. elsewhere declared and so his antecedent false Thirdly his reason foloweth not for why might not a Iudge be an accuser albeit neither an accuser could be a witnesse nor the Inditour a Iurour Fourthly if it were true that the Iustice of this land and the common lawe did not vse something which an Ecclesiasticall court doeth may it thereupon bee inferred that therein is a contrarietie and thereby for such difference onely a detestation of the other course This maner of reasoning is more cōmon with him others in these causes then any way sound substantial For the one court doeth it the other doeth it not be no contraries nor yet propositions in any other degree of opposition in that subiectum propositionis in both is not the same and therefore doe import no more but a diuersity For is this which is the very like any good reason viz. an Ecclesiasticall court readeth dissinitiue sentences de scripto but a Temporall court doeth it not in giuing iudgement therefore there is contrarietie betwixt these courts so the reading de scripto in a court ecclesiastical vtterly vnlawfull Whereof I thought it not amisse once for all to aduertise the Reader because this erroneous argument is so vsuall Lastly if all these were to be graunted vnto the Treatisour euen as he setteth them down yet what would it auaile his cause For admit these collections were absurdly gathered from the generality of the words of the Act Commission would it therefore folow that authority to minister oaths to defendāts in causes criminal could not thence be argued without absurdities being wholly another point why if euery thing cannot well be inferred thereon may therefore nothing at all be Yet vpon these such like speeches rather thē reasons of his elsewhere by sundry occasions touched the Treatisour wisheth the said learned men wiselier to aduise these Cōmissioners ecclesiastical to respect the ends expressed in the statute viz. the pleasure of God increase of vertue conseruation of peace and vnitie of this Realme rather then the ample and large words of the statute and height of their Iurisdiction as if these ends could not possibly concurre with tender of such oaths But whēsoeuer he or any other learned or vnlearned haue sufficiently indeed prooued that these cannot stand together I doubt not but that the
CoÌ„missioners wil take it as a great benefit to haue bin instructed by theÌ„ in a point touching the pleasure of God increase of vertue conseruation of vnitie which by most of their large trauels in Diuinitie by themselues they haue not hitherto fouÌ„d Howbeit this last part of his saying seemeth vnto me to sound as if he would not stick any more to grant vnto vs that the large words of the Act doe allow of this oath So that we finde nothing any way materiall by him alleaged to impeach our former conclusion viz. that the common lawes and statutes of this Realme allowe such oaths to be tendered by Ecclesiastical Iudges therfore the oath of the partie in some matter of crime that may be daÌ„mageable penal vnto him is both in practise is alowed also to be practised in courts ecclesiastical by y e lawes of this realme CHAP. IX That such oath touching a mans owne crime is allowed both by the Canon and Ciuill lawes howe farre and in what sort and that the like is established and thought equall by the lawes customes of sundry other nations aswell ancient as moderne SEing then the giuing of an oath in a cause criminall penall to a mans owne selfe is practised by the lawes of the Realme and allowed by them vnto courts Ecclesiasticall in both which respects such Canons as prescribe it are by statute warranted to be still vsed as they were before the making of the Act. 25. H. 8. and in trueth haue bene alwayes since let vs therefore see whether this course be iustifiable also by Canon and Ciuill lawes and by them allowed and practised First the lawes of the realme that do allow certaine matters to be of ecclesiasticall conusance caÌ„not be intended but to allow an ecclesiastical forme of proceeding by such lawes receiued For it were as vnreasonable to barre them from proceeding in a cause ecclesiasticall according to that lawe as it would be to require of them to deale by way of Inditements and Iuries Those lawes are so plentisull in this point that it were vaine to set downe but a tenth part of that which in this behalfe might be sayd Therefore I holde it best to shewe vnto you what is the lawe herein agreeable also to the practise in ordinarie courts ecclesiasticall as I conceiue it in as great briefnes as I can which may boâ—…h declare that by those lawes it is allowed how farre and why it is lawfull may also serue to answere by true distinction vnto all obiections drawen out of either of those lawes against this course An oath touching a criminall position or matter is either taken by a witnes or by a partie A witnes by the very nature of testimonie must depose indifferently aswell for the partie against whom he is produced as for him which produceth him And therefore is to answere truely not onely to the positions and articles giuen in by him by whom he is produced but also vnto the lawfull and pertinent Interrogatories ministred euen by the aduerse part In which Interrogatories two seuerall sortes of matters may be conteined tending to disable him from giuing testimonie The first is an Interrogatorie tending to the discouerie of his owne turpitude and vnto 1 Felinus in ca. cum causam de testibus nu 10. per communem opinionem this whether it concerne any crime supposed to be committed by the witnes or his confession thereof or the fame and infamie against him of such crime or a sentence thereof or an excommunication thereupon gone out against him or any such like matter he is not bound to answer vpon his oath though he haue done penance for it and thereby be presumed to be reformed The reason hereof is truely alleaged to be this 2 Io. Andr. in ca. 2. de confessis nu 6. per c. ex tu arum de purgat Canon c. because the end of such a criminous Interrogatory ministred by way of exception or barre to a witnes or to an accuser is onely to disable him from accusing or witnessing not to the acquitall or condemnation of the person so challenged of the crime as the ende is where a Purgation of a mans owne selfe is to be enioyned therefore no reason to aske it of himselfe For as one wel saith by the 3 Alph. Villag in Pract. Can. li. 3. c. 13. conclus 3. order of charitie eche man is bound to loue his owne body and fame one degree sooner and neerer then his neighbours insomuch as the loue towards our selues is made the rule howe to loue our neighbours in which respect it is sayd that ordinaria charitas incipit a seipsa and therefore no man is bound to furnish one that standeth opposeth himselfe against him euen against himselfe in matter of crimes but sayth he it is otherwise when a man is vrged to the like by a Magistrate that is his competent Iudge Whereby the reason of the 4 Vide 2. Part. pag. 36. priuilege of an oath ministred ex officio aboue that which is at the instance of a partie appeareth The second sort of Interrogatories tending to the disabling of a witnes is such as conteine no turpitude in themselues as 5 Felin ibid. per Baldum Interrogatories touching his condition as whether he be bond or free or of his pouertie kindred or aliance and such like and to these he is bound to answere When a criminall matter is obiected as to be answered by him that is partie vnto the suite it either toucheth the crime of some witnesse by him produced or else the partie his owne crime if 1 Specul de teste § iam de interrogat it toucheth a crime of his owne witnesse he must answere it by the vertue of that part of Iuramentum calumniae by him taken which is that he shal not burthen more then needs his aduersary in making his proofes but shall himselfe confesse a trueth therein when he is asked But when it toucheth the parties owne crime it is of two diuers considerations for either the cause is Ciuilly mooued for the priuate interest of the prosecutor or els criminally for publike punishment If the suite be but ciuilly mooued the criminous position or interrogatorie may concerne such a crime as being concealed brings benefit commoditie to him with another mans losse And in 2 Bartol in l. Manellus §. qui rerum nu 30. ff rerum amotarum this case albeit there be no fame or no detection precedent the partie is bound to answere it vpon his oath But if the concealing of it cannot procure his gaine with another mans losse 3 L. qui iurasse §. qui pater ff de iureiur ibi glo l. si a te ff de excep rei iudic then is not the partie himselfe in such case bound to answere a position criminous so mooued by his oath yet euen in this 4 Bartol vbi supra
poenitentibus 2. q. 6. in toto 6. q. 5. c. vlt. Item in princ cum c. sequ 15. q 5. c. si quis de gradu 4. c. sequ ex de purga Canonica c. 10. ibidem c praesentium 2. § praeterea singillatim cum sua gl de testibus in 6. c. cum I. A. de sent re iudicata est communis opinio Bartol in l. inter omnes §. rectè in fine ff de furtis Iul. Clar. q. 45. v. sed quaeso places of lawe by quotations and first out of the Ciuill before the Emperours were Christians and then after they were Christians as they be reported in Codâ—…ce Iustiniani and then out of the Canon lawe taken especially out of the ancient Fathers and Councels that by perusall thereof as your leasure may serue you may discerne vnto what member and part of the former distinction each of them may seuerallie be reduced This point might be further enlarged both by authorities of lawe by argument If he that hath 2 l. Marcel §. 1. fin cum ll seq ff rerum amotarum action for embezelling his goods which is but a priuate yet a criminall action at the Ciuill law will put it to the defendants oath to sweare that hee hath not embezelled them the defendant then must either take it or else be conuicted thereof Neither may he returne the oath backe vpon the plaintife the like is obserued in an action of theft which is no publike criminall action at the Ciuill lawe And the defendant may not answere 3 Bartol ibid. in l. inter omnes ff de furtis in l. de aetate §. nihil ff de Interrog act vnto these Interrogatories criminall by the worde credit vel non credit as he may doe in Ciuill actions but is to answere them directly yea or no. Though it be but at the suite of a 4 l. de aetate 12. §. qui. tacuit ff de Interr c. si post 2. de confessis in 6. priuate person if hee that is iudiciallie interrogated will not answere at all or doeth answer obscurely and peruersely he shall be holden pro confesso and be condemned no lesse then if he had confessed it because he therein contemneth the lawes and the Magistrate Likewise at a priuate persons suite and petition the oath of 5 c fin ibi DD. de iuram calumniae Iuramentum calumniae de veritate dicenda purgationis is giuen by the Iudge and 6 Abb. in c. veritatis nu 27. de dolo contu must necessarily be taken by the partie albeit the matter be criminall or else he shall be taken as conuicted thereof And when the Accuser in a criminall cause hath prooued nothing 7 Gail de pace publ ll 2. c. 7. est comm opinio per Socin seniorem in l. ait Praetor ff de iurâ—…ur besides probabilities and presumptions the Iudge if he will may minister of Office vnto the partie conuented an oathe touching the trueth of the crime called Iuramentum purgationis according to a former distinction And this kind of necessarie oath and the former haue place in 1 Clarus li. 5. §. fin 63. q. per Anaman alios all temporall or Ciuill courts abroad in the world as well as in courts Ecclesiasticall Then if where but a common person sueth either for his own priuate interest or for reuenge the Iudge by the Ciuill law may exact such necessarie oaths of the other partie importing oftentimes discouerie of matter criminall and penall to the defendant how much more then may the Iudge and ought hee to doe it after good presumptions and probabilities had where there is a publike interest growen vnto the Church or Common weale to haue the very trueth knowen for reformation of the partie and suppressing of the sinne or offence By all which premised we may see the equitie necessitie and true vse of such oaths by those two lawes Canon and Ciuill Besides those lawes it is also receiued and vsed by the Municipall and Customarie lawes of many nations of Chrstendome By the lawe 2 c. Sacramentum §. cum datur de consuetudine rectifeudi Feudall or as we here speake of Tenures such oath hath vse in crimes For if the obiected crime bee denied by the partie and cannot sufficiently be prooued he must then haue twelue compurgators to sweare of their consciences and credulities for his clearing after himselfe haue taken the oath De veritate vel falsitate criminis By the 3 Ord. Camerae Imper. tit de Purgatione ordinances and custoâ—…s of the Imperiall chamber seruing for all the Empire the like oath is vsed sauing that a Nobleman is permitted to take it by his Procurator authorized by him to sweare in animamsuam By the 4 Consuet Hungariae de Iuram Purgat customes of Hungarie there be many and long constitutions made for the taking of it and of the maner of this kinde of oath It is testified 5 Marian. in c. qualiter q. 84. Casonus in Pract. fol. 84. nu 3. also to bee the vsuall practise of all the seuerall dominions of Italie that the partie conuented in Temporall courts whether by way of Accusation or at the prosecution of another or by way of Enquirie ex officio Iudicis must sweare to declare the trueth in all those things that shall be asked of him euen of the crime it selfe Which proceeding is farre more grieuous and strict then is or may be vsed in any ecclesiasticall courts or any other in England For at the suite of a partie a man is not in any ecclesiasticall court here to be sworne De veritate ipsius criminis except there bee cause for the Iudge ex officio to enioine him his purgation And an other point of greater rigour there is that they giue such an oath not only where some corporall punishment is to be inflicted as in the Starre-chamber is vsed but where it is capitall to the partie or tendeth to the mutilation of limmes a course not allowed by the lawes and pollicie of this land For 1 Ordonnances du France liu 2. tom 2. tilt 14 du droict de refue haut passage c. pag. 1195. merchandise to bee caried out of the Realme of France the Merchant must make a declaration vnder his owne hand of the particulars thereof and the weight or measure in what ship and whither he will carrie it and that there is no more then is there set downe and that there be no deceitfull nor forbidden merchandise there and for the trueth of such note or declaration he must take an oath vpon the holy Euangelists They haue also another ordonnance in France to like purpose of swearing reaching to all Plaintifes declarations c. and to all â—…fendants answers c. without any distinction whether the same tend to discouer any crime of either of them or no. For
2 Ordonnance du France premier an 1539. art 38. the parties are bounde by oathe to affirme touching the factes conteined in their billes and additions and by their answere vpon oathe vnto Interrogatories to confesse those which be within their knowledge In other matters criminall it is reported to be the 3 Marcus decisione 674. custome of France for the partie defendant onely to make fayth when they are obiected and hee is thereupon to answere whether he haue committed them or not but hee is not to take a corporall oathe betwixt which two before God there is no difference But by the 4 Grand Coustuâ—…er entre les coustumes de Normandie customes of Normandie I finde that the appealed of murther or such like when it is to bee tried by battaile must vpon his oathe holding his aduersarie by the hand solemnelie sweare whether hee hath committed such facte or no in the very selfe same wordes and maner as Stanford afore alleadged affirmeth to bee the lawe of England in like case of Appeale Generally y t to giue 5 Bâ—…tol in l. inter omnes §. reâ—… fl de furtis an oath to the partie conueÌ„ted in a cause criminall to tell the trueth is the present vsuall practise of most nations abroad and 1 August ad Angel de maleficijs in ver comparuerunt Bertrand consil 321. nu 3. li. 3. in prima parte Marsil in l. quaestio habeÌ„dae nu 72. ff de quaestionibus Conradus in Practica fol. 280. Go. mez ca. 1. Delictorum nu 65. that the common opinion of writers in these two lawes is that it may bee so giuen euen by the lawe Ciuill which is their common lawe doeth appeare by the places of Authors here quoted in the margent Amongst nations of farre elder times in most flourishing common weales we finde oathes in all causes whether Ciuillie or Criminallie mooued to haue bene taken both by the plaintifes and also by the defendants Amongst the 2 Ex Polluce Sigonius li 4. ca. 4. de republica Atheniensi Suidas in verbo Athenians both parties tooke oathes and besides that did lay downe a certaine summe of money to be forfeited by him that should bee ouerthrowen The Plaintifes or Accusers oath was that he would obiect nothing but true crimes and matters This was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the defendant sware that he would deale and answere plainlie not fraudulently and cautelously and this was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 When Aeschines accused Timarchus of a fowle crime supposed to be done vpon him by one 3 Aeschines contra Timarchum pag. 7. Graece Misgolas he saieth thus that if Misgolas being called and vrged to beare witnesse shall denie it to the intent to gratifie Timarchus hee shall thereby doe him no good because Aeschines can prooue it by witnesses but shall only for sweare himselfe and withall shew how cunningly hee can couer such villanies Whereby appeareth that in that common wealth oaths might bee giuen in matters criminall tending to the opening of their owne turpitude as well as of other mens Radamanthus for his seuere and strict course of Iustice holden was fained by Poets like as Aeacus and Minos also were to be a Iudge in another world ouer ghosts deceassed Of him 4 Plato lib. 12. de legibus Plato thus writeth to our purpose I am perswaded saieth he that Radamanthus deserued to bee had in great admiration for he perceiued how in those dayes all men confessed that there were gods which had regard ouer humane actions therefore he thought best to commit deciding of matters in iudgement vnto gods and not vnto men So that by a very plaine and easie course hee ended all matters of iudgement for hee exacting an oath in euery cause in controuersie vsed thereby no lesse speedily then safely to giue his iudgements 5 Libr. 3. Polit. c. 10. Aristotle also Plato his scholer testifieth the like that in olde times supposed offenders that were called into question were some of them proceeded with vpoÌ„ their oaths other without and their oath was performed by holding vp of a scepter The historie of Glaucus 1 Herodotus in Etato lib. 6. an auncient Spartan doeth giue plaine euidence that amongst that most iust people of Greece a man that would denie a thing to haue bene left with him in deposito that is in trust to keepe was to take his oathe whether it was so left with him or not and consequentlie was to sweare of matter tending either to periurie or to his dishonestie and shame hauing once vniustly denied it afore to the defeating of his right who had trusted him For the said Glaucus his whole house and posteritie was rooted out by Gods vengeance onely for that a while hee denied it and had once in purpose to haue forsworne the money which was in deede left with him vpon trust and thereupon consulted with the Oracle at Delphos whether he had best forsweare himselfe or deliuer the money The vse of an oath in matters criminall amongst the people of Greece may be prooued to be most ancient by that purgation which king Agamemnon made to cleare himselfe that he had not liued incontinently with Hippodamia this his purgation is recorded to haue bene made in this forme 2 Dictyâ—… Cretensis lib. 2. belli Troiani Hee commanded two Sergeants to bring the hoste or sacrifice which being by two lifted vp from the earth Agamemnon drewe out his sworde and therewith diuided it into two partes and caused it in the presence of all to be laied downe then holding in his hand the bloudie sworde hee went betwixt the two partes of the sacrifice and when hee was passed through he then sware that he had neuer polluted Hippodamia by incontinencie Homer 3 Homer lib. 19. Iliad v. 257. mentioneth that the same king in another forme cleared himselfe that he had not violated Briseis For at that purgation a Boare was offered vp by Talthibius then Agamemnon cut off some of the Boares bristles and offered them to Iupiter swearing withall that he had not violated Briseis and the Boare was after tumbled into the sea For clearing men from suspicion of all lewd and sinister dealing not onely those which came to striue 4 Pausanias in Eliacis at the solemne exercises and games of Olympus but their parents also and brethren were sworne ouer the entrailes of a sacrificed hogge that they had vsed no fraude or deceit whatsoeuer nor done otherwise then the ordinnances for Olympus did permit So much then for the vse thereof among the old Graecians In the old Romane common 1 Cato de re rust ca. 144. 145. wealth we read that euen priuate housholders did lawfully impose such an oathe vpon their labourers that gathered Oliues videlicet that neither themselues nor yet any other by their couin or fraude had stollen or embezelled away either oyle or oliues which oathe if they
refused they neither had any wages nor any oyle or oliues For as it is by 2 c. fin §. 1. de iuram calum c. inter solicitudines d. lawe that when probable tokens or presumptions c. doe appeare hee that refuseth to take oathe though the cause bee criminall is reputed conuicted thereof So was it holden among the olde Romanes for an assured note of guiltinesse to refuse to take such oathe as may bee noted by the historie of Victorinus when hee was lord Generall of Germanie for 3 Xiphilinus in Commodo hauing his Legate or Lieutenant in some suspicion for corruption he did priuately seeke to perswade with him to take an oathe that hee would not suffer himselfe to be bribed which when he could not obtaine of him the Generall himselfe came into the Tribunall seate and there did sweare that he neither had nor euer would accept of anie bribes then he commanded his Legate to take and binde himselfe with the like oathe which because hee refused the Generall commanded that hee should giue ouer his office and place And that it might bee better discerned whether any man vpon guiltinesse of his owne conscience would at taking his oathe blanch alter the very words of the oath they somtimes deuied to haue a solemne oath whereby he that gaue the oath did vtter certaine set and conceiued words as he thought fittest which he that sware was preciselie to follow or else it serued not his turne as afore hath bene noted This they called Conceptis verbis iurare and the Graecians termed it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a solemne imposed oath An example hereof in a very fowle cause we reade in 4 Tacit. lib. 〈◊〉 Annalium Cornelius Tacitus The Senate couceiued a forme of oath and the chiefe of them first beginning to take it prouoked by their example all the rest of the Magistrates as they were asked their voyces to call God to witnesse that by their meanes nothing had bene done whereby the safetie of any citizen might bee hurt nor that they had gotten either reward or honour through the calamitie of any other Citizens but it was perceiued that such as had a guiltie conscience herein did come but tremblinglie to it and chaunged the set conceiued wordes of the oathe like as those are woont to doe who sweare falsely or cautelouslte When the Praetor one of the 1 Lex Seruilia Glauciae apud Sigonium li. 2. ca. 6 de iudicijs chiefe Magistrates of Rome had made choice of 450. Judges for deciding of causes he was by lawe for his owne clearing to sweare that hee had not wittingly chosen any of them dolo malo viz. by fraud mal-engine or for any other sinister respect By all which the premisses out of the Canon Ciuill and the lawes and customes of other nations may appeare how lawfull and equall a course it was by them also holden vpon sundry occasions to vrge oaths though some matter criminall in the partie himselfe might thereby be disclosed CHAP. X. An answere to some obiections pretended to be made against this kind of oath from the lawes Ciuil or Canon IN this Chapter such obiections as already are and some which perhaps hereafter may bee made against this kind of oath from the Ciuill or Canon lawes come to be answered Of these most be made by the Treatisour c. and some may hereafter be obiected perhaps by others The Treatisours be either against some circumstances about it or else against the oath it selfe But first touching his by-matters or circumstances Because the priuate Schedule concerning these oaths which was set downe by certaine Doctors as is mentioned in the epistle to the Reader conteineth that the defendant in a cause criminall is to answere other Articles so they be not tending to the crime it selfe though it be at the suite of a partie hee saieth that the Maxime of nemo tenetur seipsum prodere is thereby so weakened as it will scarcely nowe serue for a Minime For reason of this consequence hee asketh if this be not to goe like the crabbe oblique and to proceed the same way although not to treade the direct steppes and asketh also what should be meant by other articles but such as concerne circumstances and inducements to the crimes He is therefore to vnderstand that at the suite of a partie a man by those lawes is neither to answere criminous articles diducing 1 Angelus de maleficijs the very crime it selfe nor yet such as haue any neere coherence thereto or be propinqui Actus ipsi maleficio But of other matters hauing none affinitie with the very crime as whether he be of that Iurisdiction and such like the defendant is by vertue of his oath euen at another mans suite to answere and therefore no such crooked measure is offered herein at all But he seeth no reason he saith why there should be any difference betweene the suite and instance of the partie and the proceeding ex officio in that the reason alledged for to make a difference is but this Penancies enioyned by Ordinaries are not taken in lawe for poenae but medicina If he see not this why there should be any difference betweene those two proceedings I maruaile then what cause he can see so highly else-where to magnifie the course of proceeding by an Accusour as very equall and iust but to condemne simply all proceeding of Office as vniust forreine cruell heathenish and prophane and I know not what That he may therefore see great cause of difference betwixt these two let him a litle weigh with himselfe what the reason at the common law should be why an Appellee is allowed more freedome in sundry respects then a man endited at the Q. suite ex officio simply and why he may then put it to tryall by battaile with the appellor but cannot haue that tryall vpon an Inditement And also why a defendant against whom an Information is preferred for some criminall matter in the Courtes of the Q. Bench common pleas or Exchequer which neuerthelesse is by a kinde of proceeding mixt of both the kindes shall not be vrged to answere the bill or any interrogatories vpon his oath as all defendants in Criminall causes be forced to doe in the Starchamber He is also to be put in minde that men vse not in such briefe schedules as that was to alledge for euery matter all the reasons they can yet that one alledged is of it selfe a reason sufficient of such diuersitie for is there as great reason that I should vpon mine oath discouer my crimes being no way therof duely infamed or they otherwise proued for the satisfaction onely of mine aduersaries malicious humor by mine owne more grieuous punishment as there is when these or some like be precedent that I should to mine Ordinary or Spirituall father who in a farre milder course for his duties sake in charitie seeketh my good by reformation of me
a meere 2 10. Petr. Ferrar. forma Inquisit ver forma publica Ciuilian writer and no Canonist as he supposed with whom he hath the same and no better lucke then he had afore with the other for want of knowledge to distinguish betwixt Processe informatiue and Punitiue for thereof onely Petr. de Ferrarijs there speaketh not once mentioning an oath Albeit the Treatisour doe gather both that and other things also thereof which bee not there conteyned which I will not nowe trauerse with him because they tende not to our principall purpose Out of the lawe it selfe hee taketh holde of that Rule which the sayde Doctors did alledge viz. nemo tenetur seipsum prodere but that proditus per famam c. tenetur seipsum ostendere purgare c. which they did also adioyne he cannot in any sorte brooke or digest as a glosse he sayeth confounding the text yet is it not any glosse but aswell warranted by lawe as the rule it selfe neither doth it confound but shewe howe that rule is truely to bee vnderstoode so that one part of the lawe without any antinomie may stand with another This himselfe might haue remembred to bee lawe euen by occasion of his owne allegation else-where viz. that such as refuse to sweare or answere vnto Articles are by the Ecclesiasticall lawe to bee holden pro confessis If then that lawe doe so deepely punish the contemptuous in that behalfe as to conuict them therefore of the very crime imputed may wee not gather that the lawes Ciuill and Canon require men to answere euen matters Criminall vpon their oathes But if the Canon lawe-shall bee by others alledged to auouch such oath as we heere treate of to this allegation in seuerall places the Treatisour maketh these seuerall answeres following First hee sayeth that such oath is against Gods word and therefore no binding lawe for which consequence hee alledgeth Saint Germaine in his booke of Doctor and Studient Secondly that the two statutes of Submission of the Clergie made in king Henrie the eight his time still 1 25. H. 8. 27. H. 8. continuing in force doe take away the Canon lawe Thirdly that this kinde of oath is contrary to the lawes of the Realme All which asseuerations are nothing else but begging of that which is the principall controuersie Touching the first of these it commeth in the next Chapter to bee disoussed whether ministring of such oath be against Gods word or no. For the second those two statutes are so farre from taking the Canon lawe away that both of them doe in trueth establish all Canons being of that qualitie as is there expressed vnto all which wee auerre this oath to bee consonant The Clergie in deede doe there promise not to enact or put in vre any newe Canons c. without the kings expresse assent of which sorte this oath is none for it hath beene prooued by farre elder Canons then that time Concerning the third wee haue shewed that there is not any great diuersitie betwixt those two lawes in this poynt therefore much lesse can there bee any contrarietie or repugnancie Lastly hereto hee answereth that if any man shall seeke by long practise and continuance to giue a new probate vnto the Pontificall lawe after so publike a condemnation and firing thereof by Doctor Luther such must vnderstand from him that this kingdome is not subiect to any forreine made lawes saue such as 1 25. H. 8. ca. 21. agree to the Preamble of the statute establishing dispensations A man woulde thinke if any part of Canon lawe should swarue from those conditions required to make them English lawes that dispensations which of all other are most strict and neuer afore that time spedde in this Realme shoulde bee holden for forren lawes rather then this kinde of oath so vsuall afore and since in most courtes yet these dispensations are also there approoued for English lawes Let him therefore vnderstand that all those things there required viz. sufferance consent and custome to make the Canons establishing such oathes to be accounted the customed and ancient lawes of this Realme originally established as lawes of the same doe in these oathes so aptly concurre as hath beene prooued that none of his confident denials thereof can or shall bee able any more to empeach them from so being then the burning of the Canon lawe at Wittenberge by Luther when the Pope had burnt his bookes at Rome either did was meant or yet coulde abrogate the continuall vse of a great part thereof in Germanie euen vntill this day or then it coulde or ought to haue any force to disanull it here in England for the statute establishing such Canons as there bee mentioned was made in the selfe same Parliament and Session thereof that this Preamble was before the statute of Dispensations whereby hee woulde nowe ouerthrowe the Canon lawe wholly And both of those statutes at the beginning of her Maiesties reigne were reuiued againe in one Act. Howe can there then bee any such contrarietie or abrogation generall of the Canon lawe as this man dreameth of except all that were present in those two Parliaments had bene fast on sleepe when they twise passed them both together for statutes Others perhaps to as good purpose will obiect that ancient custome of Rome viz. 1 Gell. lib. 10. cap. 15. Fenest de Sacerd cap. 6. Virginem Vestalem Flaminem Dialem in me a iurisdictione iurare non cogam hereof 2 Plutarch probl 43. Plutarch doth set downe three reasons first that an oath is a kinde of torture to a free man Secondly for that it is absurd in smaller causes not to credite their wordes who for the highest matters touching God are credited and put in trust Thirdly for that an oath draweth after it an imprecation or curse in case hee shoulde be forsworne which seemeth to be a detestable omination towards the Priests of God First then wee see hereby in so much as this was a peculiar priuiledge graunted to these that therefore all others might by Magistrates be put to their oathes And secondly that it was from all swearing absolutely and not in matters criminall onely which is our present controuersie For so Liuie also 3 Liuius lib. 32. testifieth hereof where hee sayth that Flamen Dialis amongs the Romanes might in no case at all sweare least at any time he shoulde for sweare which in him was holden as the most heynous thing that coulde happen Thus farre in answere vnto obiections made out of those two lawes CHAP. XI That not onely such an oath may be taken but also being by Magistrates duely commaunded ought not to be refused is approued by Scriptures by practise of the Primitiue Church and of late times together with a Replie vnto certaine answeres made vnto some proofes here vsed THe Innouators finding but small reliefe in the lawes being rightly vnderstoode doe flee as it is meete vnto the word of God yet as
hoping fall worst that may to bee iudges thereof in their owne causes and so to shrowd their disobedience in refusing to be examined vpon oath vnder pretence of conscience and of a religious care not to offend God thereby And therefore they holde that they are by Gods lawe bound not to answere in that sort vpon their oath which is more then if they had onely sayd that they are not bound and so left at libertie either to answere or not as themselues should thinke good whereby they would leaue a dangerous impression in the peoples mindes that such lawes of this land wherein they are borne subiects and by which they are to be gouerned may not be obeyed of Gods people with a safe conscience as being contrary to the word of God A matter assuredly of most perillous consequence to leaue vnto the onely scanning and finall determination of euery priuate subiect how farre he neede to obey the positiue lawes of his countrey As it commeth therefore orderly in this place so is it also a matter most fit to be discussed whether the oath of a partie in a cause criminall penall to himselfe may be exacted vrged by the Magistrate without breach of Gods law and consequently not to be refused by the subiect It is said in 1 Rom. 13. ver 1. 2. 5. Scripture that euery soule must be subiect vnto the higher powers for there is no power but of God the powers that be are ordeined of God and therefore whosoeuer resisteth the power resisteth the ordinance of God and that they which resist shall receiue to themselues iudgement That we 2 Tit. 3. ver 1. must be subiect not because of wrath onely but also for conscience sake And 3 1. Pet. 2. ver 13. we are commanded to be subiect to Principalities and Powers and to be obedient And to submit our selues 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to all manner ordinance of man viz. publike gouernement for the Lords sake By which power ordinance of man or publike gouernment are not onely vnderstood all kindes of Magistracie and superiour authoritie and that we may not resist doe violence or offer contempt to their persons but much more that we are to fulfill and obserue all their politique lawes without wilfull breach of them so they be not repugnant vnto Gods word For if this happen then that hath 1 Act. Apost ca. 5. v. 29. place It is better to obey God then man And if they command contrary things we must remember that wee 2 Matt. 6. v. 24. cannot serue two masters Yet Godsword doeth not abrogate lawes common wealthes nor ciuill policies but doeth establish them Therefore except they which refuse to take such oath can shew some direct Prohibition either expressed or to be necessarilie and immediately gathered out of Gods worde against it they must know that their contempt and disobedience in this behalfe reacheth vnto God himselfe whose ordinance both the Magistrate and his lawes be S. 3 August de verb. Domini serm 57. Augustine hereof writeth thus contumaciae crimen est quod iubetur contemnere quod praecipitur nolle quod imperatum est declinare But more particularly to our purpose in handling it may bee prooued by a generall Councell that hee which holdeth his peace when he is asked or will not directly answere is wilfully disobedient and may bee conuicted for such his stubbernnesse For 4 Synod General 8. Actione 5. when as one Photius was demaunded by the Councell whether he would admit of the ordinances of the holy Fathers and he answered not any thing thereto the Presidents of the Synode signified vnto him that by his silence he should not escape from being condemned which thereby was made more manifest And to like purpose a late Schooleman writeth 5 Sotus de iust iure lib. 5. q. 6. When any thing is asked of the defendant but according to order of lawe he is vponpaine of deadly sinne bound to reueale the trueth yea though he be not sworne but much more vpon his oath Therefore is it well gathered that he which beyng duely interrogated though it be touching an offence and refuseth to answere as hee ought first offendeth against Iustice and against the 6 Iosu. 7. glorie of God Secondlie hee offendeth agaynst the reuerence of the Iudge whom he is bound to obey if he bee vnder his iurisdiction Lastly against the Common-weale which hath 1 l. ita vulneratus §. ad l. Aquil. a great interest to haue crimes discouered and punished Concerning the second of these it is by great and some of them ancient 2 Cyuus alij in l. 2. §. quod si actor C. de iuram calum Ciuill interpreters deliuered If a man who hath sworne that he will neuer take oath yet hauing a suite shall be commanded by the Iudge according to lawe to take iur amentum calumniae and thereupon doeth take it that he shall not thereby be accounted to be periured because such commaundement of the Iudge doeth excuse him For mine owne part I haue alwayes taken it to be a 3 T. C. grosse error in Diuinitie to affirme that a man may not holde any humane matter with a certaine perswasion nor doe any thing in externall actions but such onely as we haue a positiue or affirmatiue warrant for in the word of God For if this were a true position then a man might beleeue no historie to be true which is not in the Bible no Maximes or grounds of any sciences nor common principles left knowen vnto vs by the light of nature as that two and two make foure nor that there is any such countrey as America c. neither might a man with safe conscience doe infinite many things permitted by humane lawes and sundry of them also commaunded to be done because all these histories and Principles and the most of these lawes be such as can neuer by any sound reason be positiuely immediately and particularly prooued out of Scripture but onely by this generalitie that therefore they may be beleeued or done because they are not contrary to Scripture are agreeable to the vncorrupted light of nature or to sundry credible mens experience or are by the politique lawes of our countrey receiued For who can giue any other sound reason directly drawen from the Scripture that theft shall be punished with death that matters of fact shall bee tried by a Iurie of twelue led sometimes not by witnesses but by circumstances and probable inducements that the eldest sonne shall haue all his fathers land by descent from the rest of his brethren though they bee neuer so many who no lesse then the eldest are descending from him that my kinsman remooued perhaps fiue or sixe degrees descending of the whole bloud from my fathers brother shall and lawfully may inherite my lande before mine owne fathers sonne by another wife that at one and twentie yeeres a man may effectually
man doth deliuer money or stuffe of trust 1 Exod. 22. V. 7. 8. to be kept by his neighbour if it happen to be embezelled away and therefore thought to be stollen if the thiefe be not certainely knowen or found he to whom they were so deliuered in deposito though he had nothing for his paines nor there be any presumptions against him that he hath withdrawen it yet by the lawe of God must take a necessarie oath of purgation and Enquirie vpon the other mans onely suspition before the Iudges not onely that it is stollen which might iustly perhaps be doubted but also whether he himselfe hath put his hand that is by any direct or indirect means haue fraudulently dealt touching his neighbours said goodes or no The same is also a little after established by God touching any 2 Ibid. V. 10. 11. quicke goods happening to be left in deposito For if a man deliuer vnto his neighbour to keepe asse oxe sheepe or any other beast and it die or be hurt or be taken away by enemies and no man see it An oathe of the Lord shall be betweene them twaine that hee hath not put his hand vnto his neighbours goodes and the owner of it shall take the oathe and he shall not make it good where appeareth that vpon the mutuall suspition onely of the one against the other both the parties are to take such oathe which though it doe tende to the discouerie of a mans owne shame dishonestie fraude and dammage if hee happen to bee guiltie yet is hee of necessitie to take it or else to bee holden pro confesso conuicto and is so well allowed also to bee giuen by the Iudges and to be taken by the parties that it is there called an oath of the Lord. Nowe that hee must necessarily take such oathe though the cause bee criminall so that hee must eyther discouer his owne turpitude bee sinnefully forsworne if hee bee indeede guiltie thereof or else bee conuicted as guiltie for his contumacie doeth very plainely 1 Leuit. 6. ver 2 3. 4 5. appeare by Leuiticus where a sacrifice of attonement for such a sinne of periurie is prescribed besides satisfaction vnto the partie wronged If any doe sinne saieth the Lorde and denie vnto his neighbour that which was taken him to keepe or that which was put to him of trust or doth by robberie or by violence oppresse his neighbour or hath founde that which was lost and denyeth it and sweareth falsely for any of these things that a man doeth wherein hee sinneth when I say hee thus sinneth and trespasseth hee shall then restore the robbery c. So that hereby is manifest that in sundrie criminall matters euen of a mans owne turpitude such as bee prohibita quia mala hee may bee vrged to a necessarie oathe and namely touching his deteining with deniall of goodes left vpon trust with him also touching robberie violence and oppression by him supposed to be committed against his neighbour But there coulde neuer be any possibilitie in a matter secretly carried either of bewraying a mans selfe to his owne shame losse or else for swearing himselfe as is noted by this place if he might safely nay if he were bound in conscience to do as these Innouators now pretend and practise viz. to refuse to answere directly and particularly to any of these crimes that bee asked of him with oath or without his oath but might lawfully put it ouer to bee prooued onely by witnesses and then were it wholly in vaine to appoint sacrifice for a sinne into the danger of which sinne a man coulde not possibly fall except he would first commit another sinne Seeing then by the equitie of Gods owne Iudiciall Lawe in a matter criminall and of a mans owne turpitude he may be examined and must necessarily answere by oathe or else shall be holden conuicted euen vpon a priuate mans suspition alone seeking therein but his owne particular interest and satisfaction how much rather vpon sound and good detections and presumptions may this be vrged by a Magistrate and ought not to be denyed by the subiect where a common good to an whole Christian state is sought and the parties owne reformation by due correction and punishment concurring besides with the lawes of the Lande that iequireth this parte of obedience in all subiects This Iudiciall and decisorie oathe heere spoken of the Treatisour calleth a publike oathe in respect as it seemeth it is openly and Iudicially giuen before the Magistrate and confesseth it to bee necessarie notwithstanding it bee but touching a priuate matter of goodes betwixt partie and partie and therefore à minori ad maius or as Lawyers speake à fortiori it must needes bee more necessarie for a publike crime then for a priuate trespasse because the poison and malignity of the publike may preiudice and plague the whole common weale if not alwayes directlie yet by the lewdnesse of the example and may giue cause of offence vnto the well disposed If a man 1 Num. 5. ver 14. bemooued with a iealous minde or as the Hebrewe vttereth it if the spirite of Iealousie come vpon him so that hee is iealous of his wife that perhappes is defiled or if hee haue a iealous minde so that hee is iealous ouer his wife which is not defiled and so the matter doubtfull 2 Ibid. vers 13. Ibid. vers 15. Ibid. vers 19. 20 21 22. then the Lorde in such case appointeth that the man shall bring his wife to the Priest c. and the Priest shall charge her by an oathe and say vnto the woman If no man hath lyen with thee neyther thou hast turned to vncleanenesse from thine husbande be free from this bitter and curssed water But if thou hast turned from thine husbande and so thou arte defiled and some man hath lien with thee besides thine husbande then the Priest shall charge the woman with an Oathe of cursing and hee shall saie vnto her The Lorde make thee to bee accursed and detestable for the oathe among thy people and the Lorde cause thy thigh to rotte and thy bellie to swell and that this câ—…rsed water may goe into thy bowels to cause thy belly to swell anâ—… thy thigh to rotte then the woman shall answere Amen Amen In which course of proceeding I obserue to the purpose in handling that this straite Enquirie most dangerous to the bodie and soule of the woman if shee sweare falsely is grounded onely vpon the iealous suspition of her husband that it is in a crime capitall to her if she be guiltie and shall choose to confesse it rather then to forsweare her selfe with hazard of soule and of a most loathsome disease of the bodie for an adultresse by the same lawe was to be stoned to death and that it is of great turpitude vnto her and is prohibitum quia malum and lastly that it is in a hidden and secret crime
euen in thesi of his owne nature and in generall For the slender remnants of honest and vnhonest left euen to the very reprobate euer since the fall of our first parent doth remooue this action euen where it may be lawfully committed from the sight and knowledge of others so much as may be And in this 1 Ibid. V. 13. place it is hidden and secret exipsa hypothesi because the case is put that there neither bee witnes nor shee taken with the manner and yet the husband hath her in iealousie So that if God in his diuine wisedome found it equall and iust for satisfaction onely of the strange humour of iealousie not onelie vpon paine of conuiction to make her vndertake so perillous a kind of purgation but also to charge her by an oathe and a most solemne curse to declare the trueth in a crime of this quality and consequence to her life howe can the wisedome of those that chalenge oaths of farre more apparant mildenes in diuers points noted stand so opposite to the wisedome of an whole Realme for many ages together and being so strongly warranted by the wisedome of God both in this and the former Iudicialles seruing for the gouernance of his owne peculiar people In answere of this example out of Gods lawe the Treatisour saieth that the woman is not heere called for ex officio but vpon the complaint of her husband But if it be conuenient and equall vpon that most slender ground of iealousie and vpon the husbandes suspicious denunciation who perhappes is weary of his wife and mindeth to put her away if his iealous humor in that behalfe be not satisfied how much more then is it equall and iust vpon the Iudges office to be done who is no way priuatly interessed for the satisfaction or preseruation of the church or common weale to remoue a common scandall and offence by the parties clearing or by his punishment The consequence of this mine argument to be good for proofe of a farre greater equitie in the one then in the other viz. rather to minister such oathe of office then vpon an Accusers complaint the lawes both Ciuil and Canon and the customes of all nations abroade doe warrant vnto vs. all which doe permit an oathe touching a crime to be ministred vnto the defendant ex officio Iudicis and yet they all doe denie it vpon an accusation or vpon a complaint made by a voluntarie and priuate partie And therefore this difference by him taken is such as maketh flat against him without working of anie diuersitie to inferre an equitie in the one and an vniustice in the other as is pretended therefore vntruely and vainely doeth hee surmise that out of this example we wil conclude that euery Iudge Ecclesiasticall to satisfie his iealous suspition of any crime may appose by oathe and compell men to their purgation a matter repugnant vnto reason vnto lawe and vnto all practise For no man 's onlie bare suspition besides an husbands can by any equity worke an interest to driue an other to purgation of such a crime by his or her oathe The examples also of godly men reported in Scriptures doe sufficiently condemne the froward disobedience of refusers of such oathes in these dayes For they being asked sometimes particular questions dangerous to thēselues if they had not stood cleare and sometimes charged euen but in generalitie to answer what should be demanded of them they vsed not any such friuolous tergiuersations and euasions as this sorte of people and as Seminarie Priestes doe that is to say Let me knowe euery point afore that you will aske me and then I will tell you what I will doe or I will answere so far as I am bound by law and by a good conscience whereof by your leaue I my selfe will be Iudge or I will not sweare to accuse my selfe or my brother for that is contrarie to charitie or where be mine accusers let thē stand forth or if you haue any thing against me proue it by witnesses with such like a number For when the Prophet Ieremy 1 Ierem. 38. vers 14 15. was charged by the King in a generalitie to answere that which hee woulde aske him hee stoode not vpon refusall till hee might knowe what it was but made this doubt onely whether if hee tolde trueth the King woulde not kill him which when the King had promised hee woulde not then Ieremy condescended to answere what hee woulde demaunde of him signifying thereby to vs that being asked by a Magistrate if it were not a matter capitall vnto him hee ought and woulde discouer it If this were done vpon an oathe then must wee doe the like in the like case also If hee did yeelde to answere vnto Interrogatories vncertaine and vnknowen vnto him both in generalitie and also in particularitie and yet thought himselfe bounde to saie the trueth without oath then much the rather would hee haue done it vnto those whereof the qualitie he should haue knowen afore hand but especially vpon his oath And so ought wee being so deepely charged Yet these questions so generally to be propounded vnto him might haue beene of matters both criminall and very penall vnto himselfe and vnto others also When the same 2 Ierem. 37. vers 13. 14. Prophet was charged with a particular crime of intended defection and fleeing to the Chaldeans by Irijah a chiefe officer sitting Iudicially in the gate of Beniamin hee did not refuse directly to answere by putting him off to prooue it by witnesses or by anie such like dilatorie but answereth roundely and truely in the very contradictorie as it were ioyning issue with him and sayeth That is false I flee not to the Chaldeans Nowe if the Prophet had beene guiltie woulde hee haue falsely denied it or haue made anie shiftes to auoyde it thinke yee or woulde hee say vntruely being vnsworne more then being sworne I thinke no man will so imagine of the holie Prophet and therefore by this example a Magistrate in authoritie or a superiour must bee directly dealt with in questions pertinent that he shall aske whether vpon oathe or without oathe so farre as godlie Lawes doe require albeit the matter be criminall as it was in this case vnto the partie Interrogated When 3 2. Reg. ca. 5. Elisha the Prophet vpon none other detection but diuine reuelation entred to the examination of Gehazi his seruant touching a criminall matter and that without any accuser formall or representatiue besides himselfe did hee not require an answere of him and was not the seruant before God bound to answere him and that truely If heere it bee saide that he ministred none oathe vnto him it is true yet was it no more lawfull for Gehazi being his seruant and vnder his authoritie to deny it by falsehoode as hee did or to haue answered not directly or else nothing at all then it would haue bene for him to haue slatly forsworne it So
happily ought to take an oath of him If a man offer himselfe to beare witnesse the Iudge may and of some happily ought to take an oath but to compell a man to beare witnesse he ought not I would gladly hereupon aske a question of the Notegatherer who presseth vs with this mans iudgement whether hee himselfe doe as the words lye allow absolutely of this and of other his writings both concerning oathes and other matters If hee doe not but somewhere reiect him then must hee giue vs leaue also to leaue him and not to beleeue him in case he condemne all necessarie oathes imposed by Superiours vpon inferiors so well warranted vnto vs by Scripture both in humane and in diuine matters But if Tyndall meane but hereby to disalowe absolute compulsion to take oathes in worldly matters then may his speech be better accepted For vpon refusall thereof in these matters the lawes appoint not the parties to be tortured till hee doe it which were an absolute compulsion but either doe punish his contumacie and disobedience to the example of others or els doe pronouÌ„ce him pro confesso which is but a causatiue compulsion And if Tyndall be thought in his wordes afore to condemne also euery causatiue or inducing compulsion then doeth hee contrary himselfe for in his owne example of an oath giuen at taking of an office there is this causatiue compulsion to be found because there is no man but by his good will had rather omit such oath then to take it if he take it not then is he to be put back from bearing that office which is at least a causatiue compulsion in case he desire the office but if he be vnwilling to haue such Office and yet may haue as Tyndall sayth an oath imposed then some oathes may be exacted and all be not voluntarie onely It is not safe nor sound to imbrace without all choise or difference whatsoeuer any godly or learned man hath holden for being men sometime they faile and sometimes through heate of coÌ„tradiction they haue their affections like vnto others And there is no kinde of men I thinke now liuing who with greater facilitie yea disdaine too do shake off all learned writers authorities not only newe but also of the oldest where they fit not their purposes then such as now be the chiefest and almost the only oppugners of this kinde of oath amongs those who make profession of the Gospell If this our plea neuerthelesse will not be accepted I wish the Note-gatherer would tell mee whether he also will allowe of Tyndals iudgement in the points folowing viz. though the 1 Obed. of 〈◊〉 Christian pag. 137. kings sayth he by the falâ—…hood of the Bishops and Abbots be sworne to defend the liberties of the Church yet ought they not to keepe their oathes but to breake them then in his iudgement not onely they may but they ought to breake their oathes taken for obseruance of Magna Charta and other matters at their Coronations He elswhere also writeth 2 Tyndall pag. opeâ—…m 209. that the lie of Dauid vnto Achish king of Gath wheÌ„he had killed the people sacked the countreis 3 1. SaÌ„ 27. v. 10. of the Gesharites Girsites Amalekites was no sinne in him In that to perswade a sicke maÌ„ that bitter medicine is sweet is charitie no sinne And by the like 4 2. Sam. 17. vâ—… 7. c. example of the dissimulation of Chushai Furthermore Tindall thus 1 Tind pag. 207. writeth If a man go out of the country from his wife come not at a certaine day to be prefixed as within a yere or so let his wife be free to marry where she wil. And againe 2 Tin pag. 208. If the woman departe causelesse and will not be reconciled though shee commit none adulterie the man ought of right to be free to marrie againe And towards the ende of his booke of practise of Prelates as it was first printed in octauo in a Dutch letter he not only defendeth it to bee lawfull for a brother to marrie his deceassed brothers wife dying without issue albeit carnally knowen by him but vrgeth it vehemently as a matter of necessitie and of Gods morall law at this day to be performed of all Christians which no doubt he writte in hatred of king Henrie the eight and of his then mariage with the Q. Maiesties mother In which respect I thinke those who after gathered together printed his whole workes did leaue out all that vnsound disputation of his But if the Notegatherer or any other will say they haue good reason to dissent from him in those pointes let them then permitte it like wise vnto vs in this behalfe vpon no lesse reason especially if Tindal meant to condemne all oathes simply which are not meerely voluntarie From their allegations out of Canons and later diuines writings I come to their examples some whereof be vrged positiuely and some negatiuely that is where this oathe was omitted Of positiue that example of Sir Iohn Oldecastell L. Cobham and martyr mentioned by the Notegatherer commeth here to bee handled for his mislike and refusal of this oathe as is pretended Yet M. Foxe 3 〈◊〉 Vol. pag. 666. 2. edit mentioneth no such refusall of an oathe by him in respect it was criminall but for that he would not be sworne in all thinges to submit himselfe to the Church and so take what penance the Archbishop would enioyne him The Notegatherer further sayeth That many examples of like refusing might be shewed out of the bookes of the Dutch French and Spanish martyrs so that it is no new thing He that voucheth so many quotations afore to so small purpose if he had had such readie it is likely would not haue spared his paines herein though in trueth it would haue giuen small furderance or aduantage to his cause for vivendum est legibus non exemplis Euery refusall of a matter by a godly man cannot bring in an absolute condemnation thereof But if those examples he coulde haue brought be like as he saith to that of Sir Iohn Old-castles Philpots Cranmers or Lamberts then are they not like to serue his turne for none of theÌ„ refused in respect they were to be examined of matters criminall as it commeth to be discussed hereafter But hee saieth also that all the late fierie Placarts in case of heresie in France Flanders Germanie and Spaine were by inquisition vpon the parties oath post accusationem denunciationem so as the partie knewe the matter first If hee had shewed this which he saith to be true and that oathes in case of heresie were not giuen in those countries to the defendants to the contrary whereof wee haue direct euidence from writers of those nations yet serueth it nothing at all to prooue an vnlawfulnesse in this oath much lesse absolutely for a non facto ad non ius will prooue but a sorie argument And
Bernard Serm. 65. 66. in canticum other sorte of heretiques in the time of Bernard that were termed Apostolici And by certaine other as it is written that were called Flagellantes where by the way wee may obserue that none in those dayes had learned absolutely to refuse an oathe in a matter made by the Examiners criminous vnto the parties examined or yet to their complices and brethren But for not reuealing their owne or their brethrens secrets those heretiques of olde time had learned perfitly ynough to conceale the trueâ—…h yea albeit they incurred flatte periurie by such their concealement or deniall of the trueth I wil now assaye to answere the reasons which I haue heard brought for y e establishing of this their conceipt But first I must put you in minde how vnreasonable incoÌ„uenieÌ„t it is to be accouÌ„ted in al practise of lawes For wheÌ„ the defendaÌ„t hath denyed a crime obiected or refused to answere yea or nay if it might be free for all y t by likelyhood can testifie thereof to make such pretense to y e intent to excuse theÌ„selues froÌ„ that necessarie dutie vnto y e commoÌ„-wealth what criminous person could or were likely to bee euer directly conuicted whereas by the ciuil 2 〈◊〉 6. § 4. C. de his qui ad eccles consugiunt lawes sometimes he that is supposed to haue appointed the delinquent to doe the facte he that is his suretie he that is called into question for the same crime he that is fellowe or familiar with the suspected person may be compelled to sweare depose of a crime By the coÌ„mon law if such as are supposed can giue euidaece for the Queene should not oftentimes bee compelled thereunto by authoritie would there not in many causes want due proofe for iusticeing and for execution of offenders But to this it is said that men are but bounde in an obligation or recognizance to prosecute the fellonie It is true what other bond shoulde any man enter for his apparance But if hee refuse that may he not be sent to the gaole himselfe And when hee commeth before the Iudges hee is bounde also by a necessarie oathe to giue true euidence to the vtmost of his knowledge against the prisoner or person to be tried Which if he shall refuse he is like to stand in boltes with him whose fault he mindeth to conceile as hee well deserueth and happely may be condemned to pay a rounde fine besides for his notorious contempt and for abbetting of offenders in their lewdnes If it be said as some haue obiected that it is not amisse to certifie so the partie bee willing but that it is hard to bind him vpon his oath to testifie whatsoeuer he knoweth against the defendant touching that matter truely I cannot gesse whereunto this speach may tend except witnesses might say what and how little they list of the trueth or els that they would haue mens words to be beleeued against others to their coÌ„uiction without any oath But what matter can be confirmed without oathe in any outward actions of men not knowen by some sense vnto y e Iudge it is the law of nature and nations to beleeue no man against another without an oath For why should not any mans bare denial for his owne clearing bee as strong as many other mens bare words for his condemnation quia proniores esse debemus ad absolueÌ„duÌ„ quà m ad coÌ„demnanduÌ„ Therefore the holy Ghost noting it to be a law of nations that no mans word vnsworne should be receiued thus testifieth that an 1 Heb. 6. v. 16. oath for confirmation is amongs men indefinitely therefore most vniuersally an end of all strife It is 2 Alex. ab Alex. Gen. Dierum Lib. 5. cap. 10. told as amaruaile of one only amongs y e heatheÌ„ named Zenocrates for whose bare word the Athenians by alawe decreed that it should be holden of as great force as his oath in all matters such was his rare and singular vprightnesse integritie Touching their reasons I make this to be the first as most general viz. Because they haue not iustly incurred the Magistrates displeasure by any offence therfore they cannot hold themselues bound in conscience to be the Magistrates iustruments against such as be none offendours To which may be added that they are bound to seeke rather the deliuerance of the Innocent because it is said 3 Prouerb 24. ver 11. Deliuer them that are drawen to death and wilt thou not preserue them that are led to be slaine And it is noted as a sinne in S. Paul himselfe that he 4 Actes 22. v. 20. stoode by consented to Steuens death and kept the clothes of them that slue him As if they should say We haue gone in this matter as farre as our brethren we know our course to be good whatsoeuer the lawes or the Magistrates determine or thinke to the contrary that doe but seeke to punish vs for it And seeing we are so well perswaded of all our innocencies we may not be any instruments of our owne or their further detection for this were to consent to haue guiltlesse men punished But is not this to take vpon theÌ„ being but witnesses of the fact to iudge also of the lawe what it ought to be and to condemne it as it is and is it not in effect asmuch as to condemne the lawes of vniustice and the magistrats of tyrannie persecution and of seeking the vexation of innocents But if the lawes were such yet at the commandement of the magistrate to tell the particulars of these their actions so iustifiable as they thinke whereof the Magistrates already knowe the generalitie is not to consent vnto the punishment of innocents Doth euery one that confesseth his owne crime pleadeth guiltie in a cause capitall consent to his owne death or is thereby giltie of his owne blood then why is he more consenting or guiltie to their punishing due by lawe for these actions who onely declareth them truely as they are more theÌ„ he that confesseth being in deed guiltie may be said to be guiltie of his owne death It is a subiects dutie most especially in causes not capital to himselfe if he be required by authoritie not to dallie nor to lie vnto the Magistrate but to tell the fact truely as it was whomsoeuer besides it may concerne Now if thereupon either the Magistrate punish it where he ought not or more grieuously then law permitteth or if the lawe punish that as a crime which is a vertue the fault and guilt before God is not in them that declare the trueth but either in the Iudges or in the lawe Nay to enforce this point a little further I would aske this question of euery of theÌ„ that be of y e side A man being of necessitie to plead either guiltie or not guiltie to a crime capital vnto him or els to be pressed to death if he be guiltie of the fact and yet
what they are lawfully commanded albeit trouble and punishment by that occasion shal happen vnto them that so take offence So that this example doth make flat against their owne purpose and intention and can no way helpe them Another example they bring of 2 1. Reg. 1◅ ver 4 13. Obadiah who hid 100. Prophets in two caues secretly and susteined them with necessaries when Iesabel slewe the other Prophets whom she could hit vpon But this commeth farre short of the purpose for which it is brought For who euer denied it to be lawfull to shewe charitie vnto the Lords Prophets then there appeareth no commaundement to the contrary but that he might receiue them againe it doth not appeare that he was euer by authoritie charged to reueile them or to tel his knowledge what was become of those Prophets and therefore it is vnlike to the case in handling furthermore it was wholly an vniust wilfull and tyrannous persecution without warrant of law or colour of any iudiciall proceeding besides if he had bene charged by Iesabel to discouer where they were or had beene commaunded by her to relieue none such yet had it bene no disobedience towards the Magistrate for it is not noted to be the doings of the king but that Iesabel slew them Now the kings wife is no soueraigne but a subiect her selfe Moreouer the killing of the Prophets for no pretence or colour of cause at all is in it selfe so apparant an euill as no man can haue any shadow to giue a lawfull consent vnto it Lastly a man cannot gather a generall doctrine in a matter doubtfull and not plainely deliuered els where in Scripture out of any particular mans fact because all the circumstances which then fell out are not knowen But most especially an example can neuer serue to the ouerthrow of the generall commandement of obeying the Magistrate And viuendum est legibus non exemplis Out of the first booke of Samuel they bring three other examples 1. Sam. 19. ver 1. 2. The first that Saul spake to Ionathan his sonne and to all his seruants that they should kill Dauid but Ionathan Sauls sonne had a great fauour vnto Dauid and bade him take heede c. The second when Saul said to Ionathan Send and fetch Dauid vnto 1. Sam. 20. ver 31. 32. me for he shall surely die Ionathan answered Wherefore shall hee die What hath he done the third that when Saul commanded his seruants to fall vpon the Priests of the Lord to slay them they would 1. Sam. 22. ver 17. not moue their hands to fall vpon the Priests of the Lord. To these three one answere may serue and therfore they are thus set together First these commandements though of the king yet they were when he was enraged and in a furie after the Lord was departed from him an euil spirit was come vpon him Againe it is apparantly vngodly in it self for any to kill an Innocent vpon the tyrannous and vnaduised commandement of the king euen without all colour of any lawful Iudiciall course Lastly Dauid was knowen vnto them to be afore appoynted yea their annointed king from the Lord howsoeuer Saul was tolerated de facto to continue in place till the measure of his iniquitie was fulfilled And therfore in this respect was it vnlawful to kil either him or those that fauoured him especially the Lords Priests whose linnen Ephod should be a protection vnto them against Ibid. ver 18. al such precipitate executions where neither conisance of their cause nor any due conuiction and iudgement was precedent Another example they bring of the mid wiues of the Israelites to proue their intention It is thus written they feared God and did Exod. 1. ver 17. not as the king of Egypt commanded them but preserued aliue the men children This obiection carrieth his answere with him For it is said they feared God therefore did not herein as the king cōmanded noting vnto vs that the cōmandement was such as could no way stand with the feare of God There is no Prince in the world to bee obeyed when he commaundeth any thing directly forbidden by God for it is better to obey God then man The Prince is no God nor yet Gods Lieutenant but a meere man in that which he cōmandeth directly contrary to God That this was of that kinde it appeareth for to kil is manifestly by y e moral law of God nature forbidden Yet this hath his exception viz. that it is no murder when we execute the penaltie of lawe vpon murderers other wicked persons duely conuicted condemned For he that Gene. 9. ver 6. sheddeth mans blood his blood shall be shed by man saith the Lord. But there could be no colour or apparance of any actual wickednesse in children newly borne why they should be executed being but by a generall iudgement condemned most wickedly and tyrannously euen before they were non censetur existere saith the law qui adhuc est in vtero matris Now let vs compare these last foure examples with the scope and purpose for which they are vsed The very act of murdering a person notoriously innocent in that he is neither conuicted nor condemned is malumper se a thing simply and absolutely in his owne nature euill without any further circumstance But to declare what a man knoweth to be done by another the very authours themselues of this opinion must needes confesse to bee sometimes lawfull and requisit and therefore they must at least graunt it to be medius Actus such as by circumstance may be lawfull howsoeuer by the circumstances of this case as it is propounded they will perhaps hold it vnlawfull And therefore there is such dissimilitude and diuersitie betwixt these examples and that which they holde as they can neuer serue this purpose Therefore to fit their turne in the very poynt of the issue they must proue vnto vs that it is vngodly for any man though charged by lawfull authoritie to declare his knowledge of another mans actions if hee that is vrged so to make declaration doe iudge afore-hand that the Magistrate mindes to punish such action either where he ought not at all or in other sort then Gods law permitteth For this purpose they alledge as strongest the example 1 Iosh. 2. ver 3. 4. of Rahab who would not tell the king of Iericho where the two spies of Israel were though she were by him commanded to bring them foorth and she is commended for it by the 2 Heb. 11. ver 31. holy Ghost In answere hereof I say we reade not that the king asked her whether they were there still or not albeit shee 3 Iosu. 2. ver 5. answered that they went out but she was commanded to bring them forth which is something more then to tell where they were if she had beene so asked Secondly by 4 Heb. ibid. Iosu ibid. V. 10. faith
vpon hearing the miracles that God had done and wrought for the children of Israel and by special reuelation Rahab knew that God 5 Ibid. ver 11. euen the God of heauen aboue and earth beneath whose the earth is and the fulnesse thereof and who according to his prouidence and wisedome doth translate and establish kingdomes as it seemeth best to his diuine pleasure had afore that giuen that whole 6 Iosu. Ibid. V. 9. land vnto the children of Israel So that in very right and trueth she did owe no more obedience to the late king of Iericho but was by God discharged thereof and lawfully might as she did submit her selfe capitulate for her safegard with the embassadours of those to whō of very right her subiection then belonged and therefore could not without sinne haue betraied them being sent frō Ioshua her lawful soueraigne into the hands of an vsurper whō she knew perfitely the Lord had deposed 7 Ibid. ver 13. meant soone after to destroy accordingly This interpretation is euidently very strongly confirmed by that place of Scripture where she is for this cōmended By 8 Hebr. ibid. faith saith that place the harlot Rahab perished not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the disobedient when she had receiued the spies peaceably If then the rest of Iericho were disobedient in respect of which Rahabs obedience peaceable receiuing of them are cōmended therfore they perished by the hand of Ioshua the people is it not manifest that Ioshua was their lawfull Magistrate in right and that they ought to haue taken knowledge thereof and to haue obeyed him at their owne perils Lastly there is in this fact something extraordinarie as done by spectall oeconomy which by vs may not safely be followed As the lye that shee made in 1 Ios. 2. v. 4. 5. saying shee wist not whence they were and that they went out in the euening And likewise it is not to be presumed by any subiects in these dayes when as miraculous and speciall reuelations are ceased to adiudge themselues either wholly or in some particular actions circumstances to stand discharged of their obedience and alegeance towards their Soueraigne or vndermagistrates when and how farre themselues wil fansie For if by this and such like extraordinarie examples or by that of Obadiahs hiding of the hundred Prophets such presumption were lawfull or tolerable what a goodly colour might all disobedient and rebellious subiects haue namely vnnatural fugitiues ouer sea Iesuites Seminarimen recusants concealers harberours of these and such like boutifeux bellowes of sedition for all their godlesse attempts are they not or at least will they not pretend to be as assured and resolute of the goodnes of their cause as the Disciplinarians are touching theirs their designements so that for these men that would be counted most sincere professors of the Gospel to holde the like dangerous positions to seeke to confirme them with the same no better reasons and examples then the Papists doe theirs for my part I doe recken it to be the practise and part neither of grounded and iudicious Diuines nor of well aduised or duetifull subiects quorum vestigijs insistunt eorundem exitus perhorrescant But they say further that by such oath they should be drawen to discouer vnaduised speeches that sometimes passe men in priuate felowship as at table c. or such as come vnto them for counsell and for priuate resolution of their consciences First there is no man bound to answere more matters then be conteined in the Article or Interrogatorie whereof he is examined But if any matter be therein layde downe in such sort as it leadeth pertinently directly to such discouerie then is it likely that by some meanes it is detected vnto the Magistrate afore and by him thought expedient for some necessarie publike cause worthy of such Enquirie Againe if such priuate talke or asking of counsell haue bene cōcerning some platte or practise laid or to be laide that shall in discretion be adiudged by the Magistrate expedient for the common wealths sake to bee knowen and discouered and therefore if they shall enquire directly of it I can not see howe it may stand with any mans dutie to God vnto the Prince vnto Lawes to the Common wealth to conceale it being charged to the contrary But of other secret speeches treaties and resolutions of mens consciences no Magistrate is of so slender discretion as to enquire nor can by lawe though hee would for want of those indicia and speciall presumptions and inducements that are required to ground an enquirie vpon and therefore this is but matter deuised ad concitandam conflandam inuidiam against lawfull authoritie They alleage also that by their discouerie some that be very poore may be vndone and that the most of the matters and persons being already knowen vnto authoritie there can be none vse for them to appeach any but to alienate their mutuall affections and to haue one another in ielousie This is very loose simple to reason vpō a casuall euent which may happen thereby to prooue a thing vnlawfull for of a good matter an ill euent may and doeth often fall out è conuerso Careat successibus opto quisquis ab euentis facta notāda putat could the very heathē Poet say And why should a mā withdraw his duty to Magistrates onely for particular priuate respects touching himselfe and some few other priuate persons Whatsoeuer may happen let him doe as he ought Fiat iustitia ruat mundus Particularly to the first why should any man pitie his pouertie that pitieth not himself but wilfully runneth into dāger of lawes shal a man holde a poore man more deare vnto him then the common quiet peace of the Church and Common wealth both The second part implieth a contradiction in itselfe for if the matters and persons were sufficiently knowen then in trueth were it of no vse for the Magistrate to enquire further yet if they be so knowen already then what wilfulnesse is it in these men thus obstinately to persist to their owne hurt and yet to doe others no good thereby They obiect further that to discouer their brothers secrets is condemned as a fault by the Holy ghost for 1 Prou. 11. v. 13. he that goeth about as a slanderer discouereth a secret but he that is of a faithfull heart concealeth a matter And seeing they haue met in some mens houses that did it for good affection and opinion vnto them if they should discouer such it were a very vnthankefull requitall they say towardes them And for that their felowship is in the trueth the course they walke holy therefore euen by the law of loue and felowship they may not detect one another for that were a note of a false brother As for the trueth of the matters that they meete about the holines of the course they
his father c. For if the matter do concerne treason against the Prince or the common wealth I make no doubt but that a man may ought to be tortured euen against his natural father and others howe neere soeuer But if this be lawful for treason against man much more then for that which is heresie indeede being no lesse then treason against the diuine maiestie of God himselfe who is King of kings and Lord of all lords Thus farre touching their reasons and allegations from d◅uinitie and diuines So that al their obiections being refuted I will nowe presse them in this point but with one pregnāt place out of 1 Leult 5. vers 1. Leuiticus which is also handled more fully by me in the 11. chapter of this third part viz. If any haue sinned that is if he haue heard the voice of an oth and he can be a witnes whether he hath seene or knowen of it if he do not vtter it he shal beare his iniquity But these of whom we speake haue heard the voice and forme of the oath haue bene adiured in God and in her Maiesties name and by authoritie charged and recharged and they can beare witnesse for they haue seene and know the matters whereof the charge is as themselues do confesse and yet they will not vtter them in particular but obstinatly without any good ground as may appeare do persist in refusall and therefore they do grosly sin and shall beare their owne iniquity indistinctly whether the matters to be vttered be cōmendable in their brethrē or not whether they shal thereby be brought into trouble vnto punishment or otherwise Much might be alledged out of the common lawe and statutes to proue thereby the lawfull exacting of a necessary oath for discouery of our christian neighbors crimes and offences aswel such of them as be but mala quia prohibita as those which in their owne nature be euill and be therefore forbidden As that grand Iuries at Assises Sessions are vrged by oath to enquire present treasons murders other felonies breach of the peace violation of sundry lawes statutes common Nusances c. That if a 2 10. H. 6. 7. tythingman c. refuse to make presentment the steward of the Leete may amerce him And in an action of debt brought he shall not wage his lawe vpon that amercement That by a 3 19. H. 7. ca. 14. Statute chiefe constables and bailifes were to giue euidence vpon their oathes touching vnlawfull retainers within the precinct of their offices and vpon concealement were to be punished with such like a great number But because the Innouators who are nowe the most especiall defenders of this opiniō both by argument practise do make no accoūt at al of any humane lawes whensoeuer they list to fansie vnto themselues a cōdemnation contrariety of such lawes vnto the word of God as in this case they doe therefore I will no further trouble myselfe or the Reader in that course CHAP. XV. Their arguments are answered that condemne the ministring taking of an oath as vnlawful because they haue not distinct knowledge giuen vnto them of euery particular before the taking of it the like course by examples is approoued lawfull and godly ANother challēge of theirs made vnto the maner of proceeding against crimes in Ecclesiasticall courts cōcurring with the very tēder of the oth is for that they are vrged to take the oth to answer truly before sight and perusall of the articles Interrogatories by thē had whereby they might haue special and distinct knowledge of euery particular therein conteined The cause why this exception is by them taken is not for that al such refusers do purpose to take the oth when they shall haue seene the articles but if they shall finde them to be such as they thinke either cannot be proued in case they shal deny them or to be of that sort as they can easily wade through with thē then some of thē heretofore haue not stuck nor made any bones to take their oths whatsoeuer they wil do now And therfore certaine of thē will not so much as promise by their word to take oth to answer thē after perusal So that it may appeare this is but a quarrell picked by them of purpose to aduertise their complices how far they also may be touched rather then that there is any serious matter of scruple herein which they stand vpon Some of the causes why it is not thought cōuenient by those that be in authoritie to let them always know the seueral particularities aforehand so to leaue it in their liberty either to refuse or to take oath afterward to answere them are sufficient and weighty One is because it is sometimes impossible in it selfe for that one Interrogatorie often riseth of an other especially where a man answereth affirmatiuely so that the oathe cannot conueniently be in ech case restrained vnto such of thē as are set downe afore seeing necessarie occasion of circūstance ministred may leade vnto a further examination Another is because as some of them haue done when this fauour hath beene shewed they vse it but as a meanes to instruct their confederates for concealing or disguising of the trueth which may appeare for that after perusall they themselues remaine as obstinate in refusall as they were before And albeit no lawe that I knowe doth of necessitie require articles to be shewed to them at such proceeding before they resolue whether they will take the oathe or not yet if any will sweare afore but thus that he will peruse them and after hee hath perused them he wil then take the oath directly and truely to answere them so far as by law he is bound assuredly then the sight of them aforehand neither hath bin nor will I thinke at any time hereafter be denied vnto any in such a case Some reasons I haue heard to haue by thē bin vsed to proue it vngodly It is thus written in the 1 Prouerbs He that answereth Prou. 18. ver 13 a matter before he heare it it is folly and shame to him Much more then say they is it folly to sweare to answere a matter before a man heare it In very deed it is not possible directly to answere any matter before a man heare it and know what it is But the meaning of the holy Ghost there is to taxe such as vpon a pretence or for ostentation of pregnancie of wit and quicknes of conceipt or vpon some other rashnes will take vpon them to vnderstand a matter and to answer to it before halfe the tale and materiall points of it be opened vnto them Whereupon grossely ofttimes mistaking the whole matter such a man is shamed and folly is also iustly imputed vnto him for it Besides this their collection hereof is out of the rule that is in controuersie and practise For there are neuer any sworn to answer a
of him he not knowing what they will demand neither whether it be lawfull for to shew them the trueth of their demands or no for such things there be that are not lawful to be shewed This he exemplifieth thus as if saith he I were accused of fornication and none could be found in me if then they should require me to sweare to bewray any other that I haue knowen to offendin that vice I suppose it were expedient c. not to follow their will c. He also further findeth fault with such Iudges for that sometimes not knowing by any due proofe that such as haue to do afore them are culpable yet will enforce them by an oth to detect themselues in opening before them their hearts For answer hereuÌ„to First there is none that defendeth any such generall exacting of an oth to answer whatsoeuer shal be demaÌ„ded Besids what is here any way sounding to the condeÌ„nation of ministring an oth for answering to particular Interrogatories touching certain knoweÌ„ points opened before vnto y e party SecoÌ„ndly the iudgement of LaÌ„bert that a man is not bouÌ„d in distinctly to bewray whoÌ„soeuer hee knoweth to haue offended is also allowable For a man being so generally asked is not bouÌ„d by any law that I know to take oth to bewray whatsoeuer he knowes touching al other mens faults so they be meerely secret not manifested at al abroad nor bringing any scandal or apparant danger either to the church or common weale or vnto the soules of a multitude where of he may ought in charitie presume that the offendors be repentant Thirdly I take this iudgemeÌ„t also to be very sound both in diuinity and law that a man may not be vrged in any humane court to disclose what hee thinketh in his heart vnles by word or deed it be come vnto some ouert Acte For if it come so far there may be then sundrie occasions why a man should be examined what he thinketh or beleeueth As if a man wil alledge iudicially something desire it to be admitted which ought so to be in case he propound it bonafide not calumniously the Iudge may here vrge him to declare by his oth whether he beleeueth the said matter to be true that he thinketh it may be prooued Likewise he that shall be detected to haue spoken like an Atheist or an Heretike against God may be examined vpon his oath touching his beleefe neither is the bewraying of himselfe herein capitall vnto him vnles he shall wilfully persist in his error and blasphemy and therefore I thinke that by the lawes and policie of this realme it is otherwise in a person which hath once abiured is againe relapsed that he ought not to be examined by oath touching his heresies by him vttered and holden because if he be conuinced to haue relapsed he ought by lawe to be burned notwithstanding he shall then againe pretend reuocation of his error and hearty repentance Out of this answere of Lamberts vnto that article I obserue that the Treatisour in my copie at least hath some what changed these words viz. and none could be found in me if then they should require me c. for insteede of if then hee hath put these viz. or if because he would not haue them sound any way as if Lambert meant that a man might bee sworne touching the crime of fornication imputed to himselfe albeit hee were not bound to bewray all others whome he knewe to haue offended that way Besides by Lamberts said answer it appeareth that he thought Magistrates might cause subiects to sweare though against their wils that they are bound to obey them therein which he exemplifieth by that which Salomon might haue done with the two women which contended about the childe if otherwise he could not haue found out the trueth thereof And he concludeth his answere to that article thus viz. that he thinketh it lawfull at the commandement of a Iudge to take an oath to say the trueth specially if the Iudge require it duely and in lawfull wise whereby we see Tyndals iudgement by Lambert to be controlled where he writeth absolutely that no Iudge ought to make a man sweare against his will Lastly Lambert there concludeth that a Iudge may cause a man to make an oath in any other case conuenient and that also for purgation of infamie when any infamie is lawfully laide against a man So that the Treatisour himselfe who condemneth all such oathes of clearing as purgations poysonfull for that they may induce periurie is by this his owne allegation which he may notrefuse well confuted The Notegatherer auoucheth also three examples where men were proceeded with for matter of pretended heresie and yet had a copy of the Articles deliuered vnto them But he telleth not whether they were afore that or afterwarde sworne But howsoeuer some were then thought good to be proceeded with yet cannot this prooue that it was holden to be vnlawfull to doe otherwise For I haue also knowen the like fauour vsed vnto sundry pretending scruple in this point who in very deed little deserued it for they were neuer the neerer afterward to make oath to answere them The equitie of this proceeding yea farre aboue the lawfull practise of courts on the other side the sea in their proceeding against crimes euen capitall by the course of the Ciuil lawes may appeare by comparing of them in some points together They haue there two Processes in most criminall matters the first is called processus informatiuus which conteineth al the Indicia or the EuideÌ„ces presumptions sayings of those which can testifie against the partie enquired of These be taken aforehand for the priuate instruction of the Iudge euen in the absence of the partie serue for to ground his Enquirie The other is y e very Processe criminall or punitiue whereunto the partie conuented is to answere and resembleth much our Inditements at the common lawe which inditing in France they call making a mans Processe Nowe it is by 1 Conrad fol. 255. Foller in Pract. crim fol. 165. nu 9. Iodoc in Pract. fol. 24. nu 18. Maranta in Specul fol. 8. nu 8. a general custome obserued where the Ciuill lawe in that behalfe hath place that the supposed delinquent is interrogated and examined and the witnesses also after production in his presence are againe vpon their oaths repeated in the processe punitiue before the partie may haue a copy of the euidâ—…nces and presumptions that were taken against him vpon the processe informatiue And it is testified that the Iudge should doe euil if he should otherwise obserue it For 1 Inâ—…oc in c. bonz el. 〈◊〉 na 5. de elect Bâ—…us in l. edita in repetit Patau nu 30. C. de edendo in l. ea quidem r. u. 42. c. de Acâ—…sat al. j pluriâ—…ni that which hath receiued interpretation approbation of equitie by continual practise long
custome ought not by any singular person to be chaÌ„ged The reason of this course by them holden is weightie For 2 Clarus lib. 5. § fin q. 49. otherwise by the publication and copies of the Processe Informatiue giuen vp vnto them the supposed delinquents being instructed thereby what Euidence is to be vsed and giuen against them might and by likelihood would for their owne safegard practise with the witnesses and either withdrawe them cleane away or els suborne and corrupt them This Processe informatiue I meane the particular points of the euidence and presumptions yea and sometimes also the witnesses names that can testifie may be vsed in the court of Commission and in ordinarie courts ecclesiasticall are inserted into and conteined in the Articles obiected Nowe assoone as the conuented partie hath answered the Articles in this Realme of course he is if he wil to haue a copy deliuered both of them and of his answers made vnto them before any witnesses be called or vsed albeit indeede great inconueuience of subornation for auoyding punishment might thereby happen and be occasioned So litle cause haue these men to complaine of any rigorous or strict course vsed towards them as by the example of the generall custome of the world abroad might be folowed Neither haue they any cause to complaine hereof as of a thing vnusuall for not hauing other then a generall knowledge of the matters against them before they doe sweare If that 3 c. qualiter quando â—…l 2. de accusat Canon be obiected viz. exponenda sunt ei illa capitula de quibus fuerit inquirenduÌ„ vt facultatem habeat seipsum defendendi I answer that in ecelesiastical courts of this realme this is obserued euen before the oath is tendered after the partie hath answered he hath a copy not only of the heads of the matters obiected but of euery particularalso Howbeit this Canon distinguisheth not at what time these are to be opened vnto him otherwise then when hee is to vse his defence which commonly is after the witnesses be published when as he chalengeth and excepteth against their sayings or persons But if the Ciuill law be also vrged to this point which 1 L. vnius §. cogniturum ff de quastionibus L. 3. §. si ad diem ff de â—…e militari requireth copies indiciorum of the inducements or euidences to be giueÌ„ to defendants I answer that it is but before he is tortured that he may haue opportunitie to answere and to auoyde such presumptions before he susteine so irreuocable a dammage which reason hath no place in that matter which we nowe handle Besides this rule hath many limitations or excepted cases For first it 2 Campeg in addit ad ZanchinuÌ„ de haeretic ca. 9. is otherwise when the partie enquired of or accused was afore that time of euil fame Secondly when a copy of them is not desired by the defendant Thirdly when hee purposeth no defence but onely would labour to prooue the Indicia to be false Fourthly when the proceeding is by Enquirie accordâ—…ng to the fourme of somestatute Fifthly where there may be probable feare that the witnesses shal thereby be hurt or preiudiced Sixtly wheÌ„ the crime is notorious Seuenthly when the proceeding is of meere office Eightly when the defendant varieth faultreth in his answers Lastly wheÌ„ he afore refused to answer to y e Interrogatories By all which we see both y t the said rule is to be vnderstood of deliuering copies after publication of witnesses not before the defendaÌ„ts first examination also y t such disobedieÌ„t persons as refuse to answer y e Interrogatories as they ought though they were not proceeded with of Office yet are by law debarred from hauing copies of any necessitie otherwise then of curtesie And if the oath to be taken were so generall as they pretend whereas it is indeed by way of reference very particular certaine yet they might finde examples for approuing of the equitie of oaths more general then this both in the lawes of the Realme in the word of God wherof al the particularities neither at the taking of it were nor could be iudged of afore the oath taken First at the coÌ„mon law is not the oath of Iurors in the grand Enquest at al Sessions assises to enquire present al within that shire that be culpable of breach of any the lawes statutes which they shall haue in charge afterward to be giuen as large yea and a more generall oath then to sweare to answer halfe a dozen or a dozeÌ„ articles or interrogatories remaining afore in court preferred By statute it is appointed that 1 Statut de Exon. de Inquisit super Coronatores Enquirors against Coroners shall make all the Bailifes sweare that they shal well and faithfully do that which they shall haue in charge by the king and his Counsell and shall conceale nothing of it Iustices of Peace by an old 2 12. Ric. 2. ca. 7. statute of Richard the second are to be sworne duely and without fauour to keepe and put in execution all the statutes and ordinances touching their Office The like oath and somewhat more generall is appointed vnto them by a later 3 27. H. 8. ca. 5. statute to be taken viz. that they shall keepe all statutes made and to be made The oath established to be taken by great Officers of the State and of Iustice vpon another occasion afore alleaged is also of greater generalitie For it is 4 15. Ed. 3. ca. 3. enacted that great Officers about the king and in his courts of Iustice shall from time to time forwarde be sworne when they shal be put in office to keepe and mainteine the priuiledges and franchises of holy Church and the points of the great Charter and the Charter of the Forest and all other statutes without breaking any point The oath appointed by the nowe repealed statute against heresie was very generall and yet that point thought agreeable ynough to equitie for this was not any ground of the repealing of it By it was determined that the 5 2. H. ca. 7. Chancelor Treasourer Iustices of the one Bench and of the other Iustices of Peace Maiors and Bailifes of cities townes al other Officers hauing gouernance of people should make an oath to put their whole power and diligence to destroy all maner of heresies and errors c. and to assist the Ordinaries and their Commissaries and them fauour and mainteine when they shal be required The circumstance of time in that the oath is tendered before the defendant hath particularly perused the Articles or Interrogatories is sufficiently iustified by the like general practise in the Starre-chamber and Chancerie and in examinations criminall made by other Iudges and Magistrates In all which the oath as I am credibly informed is taken before the examinates haue any copy or may peruse the Interrogatories where written
Periuris nu 3. periured but is left vnto the vengeance of God to fall vpon him for it And so is it vsually practised in Courtes of that nature According vnto which lawes of enquiring by witnesses after the defendants oathe taken we also 3 Ord. Cam. Imper. tit de Purgatione §. vnd so er sollich finde the customes and ordinances of the great Court of the Imperiall Chamber in Germany to be For if a man cleare himselfe there by his oath of any crime imputed vnto him yet may any man take vpon him to accuse and to proue it afterwards against him In which case by those OrdoÌ„nances if the partie defendant happen to be conuicted then shall he bee punished not only for the principal crime but for his periurie also that he hath committed in denying it This their municipall lawe is agreeable to the Ciuil and Canon lawes there practised For as hath bin touched asore by other occasion a purgation shall not so finally cleare a man but that if good proofes may bee after made of the truth of the very crime it selfe he shall be punished both for that facte for periurie also therefore an oath of the partie yea though his coÌ„purgatours do ioyne with him vpoÌ„ their credulities is not final nor can debarre further procedings I had occasion afore to alledge out of the 3 Tom. 2. liure 2. des Ordonnances par Henry 2. pag. 1195. Ordonnances or statutes of France touching a corporal oath to be taken concerning the number weight measure and place intended for vnlading of marchandises to be shipped out thence that there was no deceitefull or forbidden wares amongst them Yet this oathe notwithstanding it is there further prouided that if vpon inquisition to be made any thing shal be found contrary to the declaration made by the partie vpon his oathe he shall lose his marchandise he is grieuously to be fined and besides shall be punished as a forger called Falsarius in the Ciuill lawes By the lawes of this Realme such further triall is vsually practised and proofes are very often made to the contrarie of that which the defendant hath deliuered in vpon his oathe In the Court of Chancerie if plaintifes should alwayes rest and might proceede to no further proofes after the defendant hath answered vpon his oathe they shoulde for the most parte haue very colde suites and small reliefe or remedie could bee giuen by that high Court The like is to be thought of the Courtes before the Queenes Counsels established in Wales and in the North parts and of the Court of Requests In that most honourable Court of the Starre Chamber the defendants doe not onely answere the Bils preferred by vertue of their oathes but also vnto sundry Interrogatories seruing to the like purpose And yet after all this it is thought necessarie to vse further proofes also by witnesses and not to bee conuenient to rest onely vpon the honestie and conscience of the supposed delinquent Besides this practise and long continued custome quae est optimus legum Interpres there be also statutes in the very point By the statute of 1 34. H. 8. ca. 4. Bankrupts in K. Henry the 8. time authoritie is giueÌ„ to certaine there named to call and examine such as are suspected to conceale such offenders goods and to examine them by their oathes and by other wayes as in discretion they shall thinke meete vpon the specialtie certeintie true declaration knowledge of such offenders goods or debts owing to him and if he shewe not the whole trueth to bee after prooued by witnesses c. then hee forfeiteth double the goods concealed 2 13. Eliz. cap. 7. And the very like clause in that matter of Bankrupts is established by a statute made in her Maiesties time At the Common lawe the Iudges doe not alwayes rest in an oath of a partie but doe sometimes enquire further of the trueth of it and doe punish him also for taking a false oath if he be thereof conuicted 3 P. 5. H. 6. â—…ol 25. One was brought into the Court as a pledge and did sweare he might dispend fortie shillings land by yeere yet the Court rested not in this oath but examined the matter more straitly vpon occasion that one then present dwelling in the same place did affirme that the other might dispend nothing and it being founde that he could dispend but twentie shillings by yeere he was committed to the Fleete till he had paid his fine So that both by diuine and humane lawes we see neither reason equitie nor practise for Iudges necessarily to rest in a mans answere made vpon his oath without proceeding to the taking of any further proofes whereby the lawfulnesse of that oath which I termed partly of Purgation and partly of Enquirie is more particularly also approued But the Treatisour condemneth all Canonicall purgations as contrarie vnto equitie and therefore termeth them deadly purgations not healthfull but hurtfull and poysoning purgations dangerously giuen for preseruatiues Which if it were true would take away not onely our reason taken from proofes which may bee made euen after the parties Canonical purgation but also the oath which I termed partly of purgation and partly of Enquirie What his reasons to that purpose be it will not therefore bee amisse briefly to coÌ„sider to adde also some-what for clearing of lawes and courtes Ecclesiasticall from vniustice herein and for the defence of the vse of purgations by the parties owne othe c. The conclusion which in this behalfe he taketh vpon him to proue is that proceeding ex officio to forced purgations is hard and vniust dealing towards men and a great abuse of the name and maiestie of Almightie God cloked and shadowed neuerthelesse vnder glorious and painted glosses c. But he mistaketh the matter greatly to thinke that those matters which in the aforesaid doctors schedule he challengeth for no better then painted glosses beautifull shewes and fained pretenses were by them set downe for iustifying of purgations for they were in deed principally by them mentioned to shewe the necessitie of Enquiring by oath and of punishing offenders If I thought that in his setting forth of the state of this question he fixed any force in that point for that the proceeding is ex officio I woulde then remitte the Reader vnto that which hath bene spoken thereof in the second parte For proofe of Iniustice thereby offered vnto men hee presseth those Doctors with their owne maxime viz. Nemo tenetur * Vide cap. 9. 3. part seipsum prodere But why hee that is otherwise very presumptiuely detected should not be driuen to shewe and declare his innocencie vpon his oath or else yeelde to the detect which they also adde for the true vnderstanding thereof he sheweth no reason other then that as a glosse confounding the text It wholly he saith destroyeth that rule and principle But how can it bee verified that
this principle is thereby wholy destroyed when as the detection made by fame by denunciatiō or presentment c. commeth from others and is not a mans owne detection of himselfe therefore it is not so much as a limitation properly but rather a true exposition how that rule ought to be vnderstood By as good reason it might be said that because a man is not at first by any course of Iustice bound to discouer the very facte against himselfe that therefore being called into question and touched by great presumptions and arraigned for it there is no Iustice to vrge him to pleade either not guiltie and so to lye or else guiltie and so to bewraye himselfe For proofe of an abuse of Gods name and Maiestie by purgations he sayeth to offer an oathe vnto persons diffamed concerning their owne corrupt life argueth a lightnes and want of good discretiō in the Magistrate For that he wittingly doeth minister an occasion of periurie I haue spoken of this point by occasion afore and I trust the Readers wil pardon my necessary repetitiōs sometime of one matter in diuers places considering the Treatisour vpon one reason seeketh very often to build many seuerall distinct conclusions First no man ought by any occasion whatsoeuer be drawen to goe against his oath or to periure himselfe a word most properly verified in an oathe Assertorie such as that of purgation is Secondly it is to bee denied that whatsoeuer a man of a bad minde may take for an occasion to forsweare himselfe that in euery such case it is lightnes and vndiscretion in the Magistrate to offer an oathe Which may appeare by decisorie oathes or wagers of lawe in actions reall or personall for landes and goods being such things which be as deepely by most men tendered and affected as their owne good names or honest reputations Thirdly it is too grieuous a charge to bring euery lightnes or vndiscretion of a Magistrate within the compasse of abusing Gods name maiestie though this were admitted to be such lightnes Fourthly no lawe presumeth so vncharitably as though euery one detected or presented of corrupt life were straightway of necessitie and in very deed guiltie of such crime nor yet is it to bee intended that most which be in trueth guiltie will rather forsweare themselues then confesse the trueth considering the penaltie inflicted by courtes Ecclesiasticall are not very grieuous and the chiefe end therein aymed at is but an inducement vnto a testification of the delinquēts repentance Fiftly euery one who vpon a fame is detected or presented cannot be truely said to be thereupō diffamed infamia iuris For a fame may rise yea very probable cause of suspition of a crime may also be giuen where neuerthelesse the fact is not at all committed Lastly it is not euery person suspected of any crime who in discretion of the Magistrate is not to be vrged with an oathe but it is such an one who is probably suspected to be more likely to forsweare himselfe then to confesse a trueth But herein he presseth vs yet further with a piece of old counsell viz. Dedecus magis quà m periculum vites Whosoeuer giues this counsell if hee shoulde meane that the perill of a mans soule were rather to be embraced then any worldly shame it were very vnsounde and wicked counsell For it is better to loose not onely our whole credites in the worlde yea all the world besides rather then our owne soules It is in trueth but an exhortation vnto valor and courage and that a man in a good cause should rather incurre any bodily perill then empaire or distaine his honor and loyaltie to his countrie by cowardise Besides in matters spirituall and belonging to the soule there is a shame which bringeth honor as Ecclesiasticus writeth He inueigheth also against them ex absurdo because if purgations should be vsed he saieth at the Common Lawe vpon Enditements of felonie or other criminall causes periurie would ouerflowe the land I am also of this minde that if for matters of life death a man might be acquited vpon his owne oathe and his Compurgators that many wilfull periuries would be committed But othes of purgation bee not imposed any more at the Ecclesiasticall lawe then they be at the Common lawe in any matters capitall And as purgation is onely a presumptiue kinde of clearing to remoue the offense for safegard of his credit who being infamed can iustly and truely performe it so is it no such finall acquitall but that the partie purged may againe be conuented for the same if any man by lawe allowed will vndertake the proofe not of the same but of the very crime and offense it selfe whereof hee was afore purged As for other criminall causes which endanger not life nor limme diuerse Temporall courtes though not vpon Enditements without such feare of driuing men to periurie do minister vrge the parties othes as hath bin shewed Yet not holding them purged or cleared thereby albeit they deny the crimes but enquiring further and examining witnesses also afterwardes touching the trueth of the offense Besides such othes be ministred in those Temporal courtes vpon no detection of fame or other presumption grounded vpon the othes of any but vpon the priuate vindicatiue minde of him which putteth in the bill and prosecuteth Lastly there bee fewe or none of the crimes called transeuntia and not capitall which be enquirable in any courtes temporal or if any be they are not in their owne nature so secretly and without possibilitie of direct proofe performed as the crime of incontinencie is touching which most purgations fall out in Ecclesiasticall courtes There was therefore small cause of that his question here viz. Why Ecclesiastical courtes offer not to the laitie the like good measure and vpright and sincere Iustice that themselues finde in courtes temporal Besides that by the same question hee indirectly also taxeth all courtes whatsoeuer that impose othe on the partie for want of good measure and of vpright and sincere Iustice. Vpon the former reasons against purgation he groūdeth another question also viz. Why these ordinaries which challenge or assume to themselues the goodly name and title of spiritual men doe not proceede to condemnation by good proofe of lawfull witnesses and againe absolue the partie diffamed where such sufficient proofe failes them I answere first Ordinaries doe not in these dayes eyther challenge or assume to thēselues such goodly name as he solaceth himselfe at but rather the title of persons or Iudges Ecclesiastical In deede that other name in times past was willingly embraced by the Cleargie and as they thought without any iniurie to other callings in respecte of the subiect matter of their profession which is spirituall And by no mans writings or speeches is it more often attributed vnto them euen vntill this day then it is in statutes of the Realme in reportes and vsuall speeches at the Commō law Therefore
was there y e lesse coloure that Ordinaries should be vpbrayded with it as if they of their owne heads did vainely arrogate that title vnto themselues Secondly Ordinaries doe in all causes not confessed proceede to condemnation vpon witnesses and matter of Recorde or vnto absolution vpon fayling in proofe sauing in crimes which be of that secrecie in their owne nature so as witnesses of the very crime by no likelyhood can be had yet alwayes where such probable inducements thereof doe lye as doe inferre a fame or giue scandall to the well affected and are euill examples to the weake and vnstayed Thirdly if no condemnation of a man be iust in any court but vpon good proofe of lawfull witnesses deposing of their owne sightes and knowledges then doeth he withall impugne the vsual and lawful Iustice of this land by Iuries who in crimes of very high qualitie are often may be led sometimes by one witnes yea and he the partie that preferres vp the Inditement and sometimes though by moe witnesses then one yet all deposing vpon probabilities presumptions and other pregnant or likely inducements to proue the partie to be guiltie Like wise he ouerthrowes also hereby all waging of law by the parties Iudicial othe taken in courtes of the Common lawe about chattels debtes and landes For a man hauing but two handes of Compurgators swearing for the trueth of his oathe vpon their owne credulities shal be thereby relieued and acquited against his aduersarie without any witnesse at all For the Treatisour himselfe telleth vs that wager of lawe is not permitted where any one witnesse or writing may bee had and if the partie will not take such oathe being offered then is he without witnesse writing or other confession condemned for the matter in demaunde Now sauing that it is not in a cause cryminal what doeth this wager of lawe else differ from a purgation and what lesse danger of deadlines poyson or periurie is there herein especially if the matter be of any weight and moment then there is in purgations at the law Ecclesiastical and yet neuerthelesse both of them be good measure vpright sincere dealing in all course of good Iustice. Lastly if in crimes of that hidden nature he would haue all diffamed persons without more adoe discharged and absolued where two witnesses of the very fact cannot be had he might then in steede of feare that periurie in the other case would ouerflow the land stand wel assured in this that adulterie and lecherie might and would more freely ouerflow it without all touch or cōtrolment Admitting that which the Treatisour further alledgeth out of the grieuances of Germany to this purpose to be truely by him set down yet there is nothing there obiected which cōdēneth these purgations For the first fault there found is only for that men vpō false reports sclanders being brought before Ordinaries hauing purged themselues do neuertheles pay for their letters of absolution which ought rather to be paid by such as falsly accused them Whether any such thing were practised then in Germanie or no I know not heate of opposition sharpenesse of humour makes men sometimes either wilfully or by mistaking to misreport matters hapning euen at their owne doores But I stand not to defend abuses by any man offred against law The law is that vpon an accusation a man shall not be put to oath of purgation except the proofes made though they do not conuince yet doe greatly burthen and charge him by vehement presumptions or scandall And if he do then purge cleare himselfe the accuser is to be condemned in charges And though by Accuser here any priuate prosecutor were to be vnderstood yet vpon the purgation euen such must likewise defray the charges because it is calumnia praesumpta But if publike Officers that are appointed to present do make denunciation then are they to pay no charges vnlesse not onely the presumed calumniation and conspiracie but also a true and formall calumniation be found against them The next grieuances there pretended by him alledged are for that vpon diffaming one of another through anger both the partie that did diffame must take oath that what was spoken by him was not deliberately but vpon displeasure vttered and the partie diffamed that hee or shee is not an adulterer c. as they were by the other slandered to be whereby is inferred as inconuiences that both vnlawfull gaine is thereby sought and wilful periurie forced It is no maruaile in deed though such greater inconueniences also should happē where due proceeding in law is not obserued for neither of these two last courses is warranted by any law nor yet followed by any practise in this Realm y t I know or haue heard of therfore culpateneat autores So that Purgation in it selfe is not assigned we see for any of those Germaine grieuances But because the Treatisour surmised his reasons could not otherwise be answered nor Purgations iustified vnlesse Compurgators who concurre in that action swear vpon their credulities were thereunto vouched to help the cause therfore to meete also with this point he saith the matter is therby no whit amēded but rather made worse empayred because compurgators do in effect iustifie him to be honest whose fame the former deponēts haue proued to be dishonest very neere the circumstāces considered conuinced of the crime obiected where may be obserued howe light account soeuer els-where he doe make of fame without direct proofes therfore would haue the partie dismissed w tout more adoe that neuerthelesse he maketh it here to be very neere a conuiction Albeit a fame and those who depose thereof do burden and charge a mans honestie yet doe they not conuince him of the fact and therefore do not proue him to be dishonest Furthermore the number of Compurgators cannot make worse nor impaire any way either the credit of the man or of the matter though it were granted that there oathes for his reason afore alledged were rash and vnconsiderate wheras in trueth the fame or such like inducement being but a charge importing some presumption against the partie is most aptly cleared and taken away as with a more strong presumption viz. by the partie himselfe who taketh oath of his owne innocencie from the very fact is besides assisted with the oathes of sundry others who are priuie to his former conuersation and feare of God deposing vpon their credulities that weying the whole matter indifferently they verily thinke the partie hath taken a true oath Againe if by fame and by the presenters oathes therof the partie be in deede proued dishonest why doth he say that it is but neere vnto a Conuiction for if dishonestic were thereby proued by him why should he not also stand thereupon conuicted But I would haue thought till now that none who thinketh reuerently and but as he ought of the common lawes of this his owne countrey howsoeuer he do
of all other could thus absolutely and aduisedly haue condemned all kinde of purgations by oath for what I pray is wager of law as I said afore differing from purgation but that this concerneth matter of our good name and credit and wager of lawe is touching our lands or goods Neuerthelesse the common law is not wholly destitute neither of example of this purgatorie oath euen in matter of secrete crimes For the party appelled of murder or robberie who putteth it to triall by battel as hath by other occasion bene afore alledged before the combat must take an oath that he hath not cōmitted such offence and heerein the lawe yet resteth not but requireth also afterward a further tryall by battaile betwixt them whether the appelled partie will thereby fall out to bee tried cleare or culpable And if either the partie appelled refuse the one or be vanquished in the other the lawe pronounceth and holdeth him for a man conuicted of the hidden crime it selfe that was imputed to him If 1 c. 1. 2. de purgat vulgari 2. q. 4. c. monomachiam this oath of purgation with such further triall being both of deadly danger and of great doubt when all is done in a matter capitall yea and vpon the appeale or accusation of another bee but good measure sincere and vpright iustice a trier and preseruer of innocencies not hurtfull but healthfull to the common weale nor no poysoning purgation whereof I hope the Treatisour will make no scruple then where the purgation for a secret crime and vppon no lesse presumptions is imposed not by an enemie or accuser but by the Iudges office not importing any danger of bodily death but tending to the good of his soule and satisfaction of other Christian mens consciences wounded and grieued there must needes bee much lesse cause of any such challenge For furder iustifying of Purgation by the parties oath with Compurgators I minde not to alledge the autoritie either of Canon or Ciuill lawes because they are like with such great facilitie to be reiected by him For he saith that it is no matter what their lawes presume or teach but with what reason they doe it Well there bee not a fewe nor those vnwise nations in the world where the authoritie of the lawes hee meaneth is such as that they are euen presumed and entended to be grounded vpon good reason albeit a reason of euery law cannot well and aptly be yeelded as those lawes doc testific The receiued vse of this purgation amongst most Ciuill nations doth make it to be little lesse then Ius gentium and therefore by moderate and graue men it is not meete so lightly and slightly without good grounds to be condemned Besides purgation Canonical is so farre from being condemned by good godly Bishops in ancient times that by whole Councels it hath bene prescribed Let 1 Concil Tribur Can. 21. a lay man saith one Councell if neede be purge himselfe by his oath and let a priest by the Consecration of the holy Sacrament be interrogated And another Councell thus 2 Iuo li. 5. ex Concil Agathensi Let a Priest if he can purge himselfe of the crime with seuen of his order and a Deacon with three So was it decreed by a third Councell 3 Iuo ibidem ex Concil I◅densi if a Priest or minister be infamed amongst his charge and it cannot be proued before the Bishoppe by witnesses let him bee suspended vntill he performe due satisfaction least the faithfull people be scandalized But as our Elders haue taught then is the satisfaction due and orderly when according to the Canons or as the Bishoppes shall iudge fitte he ioyneth vnto him seuen Compurgators and sweares by the holy Gospels laid afore him that he hath not committed the crime laid vnto him and when he is thus purged then let him againe freely execute his office And in another 4 Concil Worm◅c Councell we finde purgation prescribed for theft and also for adulterie Besides these sundrie others also might be alledged and according to the prescription of such Canons examples haue gone for sundrie ancient Bishops in the Church haue themselues made their owne purgations for auoiding or remouing of scandal offence 5 12. q. 4. c. manda◅is Sixtus the third an ancient Bishop of Rome but vpon the accusation of one Bassus did willingly make his purgation vpon his oath in a Councell which in that case was more then he needed to haue done And so did 6 Iuo Car. li. 5. Leo another ancient Bishop of the same See purge himselfe with twelue Bishops Gregorie the great enioyned vnto 7 Greg. ep 23. ad Iustinum presbyt Leo 8 Idem ep 8. li. 2. Memius and 9 Idem ep 8. li. 7. ep 75. li. d. Maximus three Bishops to cleare purge themselues of seuerall crimes by their oathes whereof the last was for Simonie Innocentius also caused the Bishop of Trent to purge himselfe of the like crime of Simonie And what be the oathes touching goods stolne or embezeled which were left with a man vpon trust appoynted in 10 Exo. 22. v. 7. 8. 10. 11. Exodus and those in Salomons prayer at the 11 1. Reg. ca. 8. ver 31. 32. dedication of the Temple other then oathes of purgation of a crime imposed by the partie hauing an interest Likewise the oathes mentioned in 12 Leuit. 6. ver 2 3 4 5. Leuiticus concerning goods denied that are pretended to haue beene left in deposito or goods gotten by robberie or by violent oppression or casually found after they were lost yet by the finder denyed are they not for purgation and clearing of the partie from the crimes imputed and in some respect also decisorie of the whole controuersie vnlesse sound proofes touching the true guiltines of the partie may be afterward found out and vsed Againe the 1 Num. 5. v. 14. c oath of ielousie taken with a further solemnitie of purgation and imposed by the Priest a publike Magistrate in that behalfe is an oath not onely of Enquirie but of purgation to the woman denounced for suspition of adulterie by her husband Lastly the 2 Deu. ca. 21. v. 1. oath imposed by Gods lawe vpon the Elders of the Citie situated next vnto the corps of a man which is found secretly murdered is a plaine and most direct oath of purgation euen in a crime in his owne nature euill capitall to the offenders To conclude therefore we doe finde it lawfull and godly sometime to make further Enquirie and tryall then a defendants owne oath who thereupon denyeth the matter and that purgations Canonicall bee conuenient allowable and manifoldly lawfull yea by the very worde of God it selfe The Epilogue vnto him for whom the first draught of this Apologie was priuately addressed THus haue I as plainely as I could and as briefly as the matter would suffer in my rude
illud quod dicere nolo Iam verò dum ne peccetur iureiurando haud quicquam credo interest anténe promittas te dicturum iuramento promissorio an pòst deieres te dixisse 〈◊〉 Eodem redit priusquam respondeas profitearis te id sine fraude facturum praemisso an postquam respondisti attesteris te id sine fraude fecisse submisso iuramento Dixi quidem dicam Feci faciam duo sunt tempora iuramentum idem est Quare ad rem quidem haud quicquam interesse puto interesse tamen hoc quod plurimum conducat hoc litibus tum vt explicitae sint tum vt expeditae si omnium primò iuretur Vt explicitae ne si reo praeuaricari libeat cum nondum sacramento obstrictus sit fluctuet lis rota nec basin cardinémque consequatur Vt expeditae ne si nolit reus vbi respondit in responsa iurare easdem saepe quaestiones iteraâ—…e atque ita actum agere iudex cogatur Interesse denique quod in illa iudicij formulâ diuinae legiinprimis consentanea nostrae huic quae in dubium vocatur quà m maximè affini is ordo sit iuramenti primùm dein quaestionis Esra 10. 5. Idque ipsorum postulato de quibus habita est quaestio Cùm enim de litibus expedieÌ„dis accuratissimè diuina lege caueatur neque prior in scriptura mentio iudicij vt fiat quà m vt citò fiat ne si diu sit in Fieri acetosum fiat Exod. 18. 14. rectè postulant illi Esr. 10. 13. ne sibi necesse sit pro tribunali ad omnia quaesita respondere longum opus esse nec vnius diei Quare post praestitum à se loco solenni solenne iuramentum venturos se pòst per otium 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 id est designatis temporibus vt in singulas facti circumstantias virtute priùs praestiti iuramenti inquiratur Eadem nunc praxis apud nos idem mos obtiner quidem siue consilium spectes aequissimus siue institutum diuino quà m simillimus Nam si iuramentum praecedere debeant quaestiones cum nisi pro consessu iureiurare quemquam nefas certè vix vnus dies vni causae sufficiat cogaturque quod Iethro factum damnauit astâ—…re iudicio populus à manè vsque ad vesperam Vltimum id est quod quidam vitio mentis procul dubio deferri sibi postulant ne in emissum à se iusiurandum inquiratur Idque Paulinae sententiae fiducia Cuiusque contradictionis terminus iuramentum Mitto quòd id ita interpretari Heb. 6. 16. liceat vt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 illud status potiùs sit quà m exitus controuersiae Verùm ne liceat sed esto sanè sit terminus iuramentum at non qualecunque tamen aut a quocunque quomodocunque praestitum vix hoc sani cerebri postulatum verùm eiusmodi spero vt de eius fide nulla sit contradictio si modo contradictio per illud terminari debeat Quare si litem sine contradictione terminare debet ita liquidum esse debet vt ei nemo vel citra examen vel pòst aut velit aut possit contradicere Iusiurandum enim quoduis cuiusuis omni inquisitione liberare velle quid aliud est quà m periurij causam agere quid aliud quà m quasi signo dato ita authoramento hoc profligatae fidei homines ad scelus hoc sollicitare Cum enim siue id actor siue reus seu testis praestet eadem iuramenti religio idem valor sit actum est si quis iurare in litem velit statim causam obtineat pòst autem recténe iuratum an secus inquirere nefas Quippe iâ—…siurandum omnis controuersâ—…e terminus Isthuc quidem si sic detur periuris benè sit Cum Deo transigant si possint certè à lege nihil metuant nec aure luant quod ore peccarunt Quanto id aequius Imò verò si bonae fidei est iusiurandum bis térve inquiratur vel septies si libet semper quasi de fornace liquidum magis purúmque exibit ipsáque semper inquisitio vberioris fidei acquisitio futura est Sin non bonae vel dubiae fidei sit vel suspectae inquiratur tum quò iniusta vincula rumpat iustitia Ratio quidem haec ratió-ne sola Nónne lex eadem dicit Siue quis in sua causa pro se seu in aliena contra alium sacramento contendat Pro se suspectae pudicitiae mulier cum eiurasset adulterium dira execratione sui ipsius nunquid dimissa statim finis námque omnis controuersiae iusiurandum imo vero recténe iurata an secus quaestio noua Cui rei ebibendas habuit aquas amaras iuramenti sui vel veri indices vel falsi vindices futuras Num. 5. 24. Contra alium Cum enim statam rem fore cauisset lex ex ore duorum triúmve testium qui iurati testimonium dixissent in quempiam Deut. 19. 16. ne quis humana testimonia quasi diuina oracula haberet proximo versu edicit sisti tamen posse denuò testem suspectum inquiri adeò an castè integréque versatus fuerit in testimonio ferendo sin falsi conuictus fuerit eodem prorsus supplicio afficiendum fore quo fuerat is quem reum peregerat Sed ego peccem in tempus etiam in templum quoque cuius nos iampridem vox auocauit si vlteriùs insecter hasce ineptias quas quiuis cum volet obterere poterit argumentis ita suâ sponte diffluunt Reddo igitur vos vobis concludo Si vt ait propheta disponatur iudicium hoc quo vtimur ad lineam Es. 28. 17. iustitia haec ad perpendiculum verbi diuini nusquam in ijs peccari Exigere posse magistratum idque à reo praesertim dum ne capitalis causa sit aut sanguinaria iusiurandum suum idque eousque posse siue vt lis basin suam obtineat dum status quaeritur siue vt probationum veritas elucescat dum quaestio habetur Neque verò iuramenti aut fines aut ordmem aut examen peccare in Theologiam ac proin detrectari non posse Qui detrectant primùm inscitia diuiâ—… iuris id facere periculoso dein exemplo si sic liccat animi gratia in iudicia publica sine iudicio inquirere si caeteras regni res momentáque reipub denique ius ipsum si pro nobis non faciat in ius vocare Quod auertat à nobis Deus opt max. ad quem conuersi precemur vti det nobis modestè sapere sentire in omnibus cernere animis quà m non religiosum sit quà m non Christianum inclinare iudicia gentis nostrae quin ea potiùs quae remp nósque omnes sustentant omni conatu nostro omnibus ingenij neruis ac viribus sustentare Proximè enim post Deum Deique cultum verissimum est Elihu verbum Duo haec iustitiam ac iudicium sustentare omnia Iob 36. 17. Atque ita determinata mihi sit lis ista atque vtinam etiam terminata Faults escaped In the Epistle to the Reader In E. j. in the 9. line for honour reade hauour In the next leafe afore D. line 19. for imploying read implying In the 1. part Pag. 3. quotation 3. for ca. 4. read 8. Pag. 27. lin 13. betwixt the worde those and the worde opinions adde great Pag. 35. line vlt. in steede of for tithes read from paying tithes Pag. 37. lin 4 after the worde three adde these neede be paide Pag 41. lin 21. for it read in Pag. 50. lin 2. for And reade As. Pag. 53. lin 23. after his adde heires Pag. 65. lin 22. betwixt the words otherwise and doth adde And. Pag. 72. lin 19. for causes read cause Pag. 73. lin 8. for euidenâ—… reade euidence In the twelfth Chapter in most places where it is goods and chattels reade debts and chattels Pag. 85. the quotation should be referred to the 28. line Pag. 88. lin 29. for therefore read thereof Pag. 108. lin 14. and pag. 109. lin 15. for 10. Eliz. reade primo Pag 110. lin 29. after this worde Lawe adde these if this so did and blot them out of the beginning of the next sentence Pag. 122. lin 24. for the read that Pag. 126. lin 31. after this worde king adde these is not Pag. 127. lin 34. for de drawne read be drawen In the 2. part Pag. 2. lin 11. for these read those Pag. 4. lin 13. for practices read practice Pag. 15. lin 14. for wroâ—…sully read wrongfully Pag. 34. lin 27. for euer read euen Pag. 35. lin penult put out the first a. Pag. 36. lin 2. for persâ—…cuter read prosecutour Pag. 43. lin 31. for proceede reade praeceede Pag. 45. lin 24. for or reade no. Pag. 87. lin 11. for retaliatio read retaliation pag. 92. lin 14. and 16. for Cumperell read Camperell Pag. 96. lin 28. for M. in the quotation reade T. but the whole case it selfe was mistaken by me Pag. 100. quotatione 7. make it thus Vide 3. part c. 8. Pag. 100. lin 17. for ipsam read ipsum Pag. 107. lin 4. 23. for 1. H. 4. reade 2. H. 4. Pag. 110. lin 9. betwixt be and one adde but. Pag. 127. lin penult for Accuser read Accusors Pag. 134. lin 30. for Enquire read Enquirie In the 3. part Pag. 11. lin 3. for that reade of Pag. 65. lin 14. for Piue reade Pine Pag. 75. and so on is quoted for 73. c. Pag. 81. lin penult put out that Pag. 109. lin 14. for these reade those Pag. 114. lin 33. for benfice read benefice Pag. 120. lin 9. for pollicie read politie Pag. 123. lin 25. for deuied read deuised Pag. 165. lin 21. for temporall reade temporall Pag. 172. lin 4. for will reade wel Pag. 184. lin 19. these letters T. C. should be in the margent Pa g. 186. lin 29. for ouerthowe read ouerthrowe Pag. 201. lin 6. for certifie reade testifie